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«     % 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


1 


./ 


A  TREATISE 

ON   THE 


LAW  OF  INJUNCTIONS 


JAMES    L.    HIGH 


Fourth  Edition 

REVISED  AND  GREATLY  ENLARGED 
BY 

SHIRLEY  T.  HIGH 

OF  THE  CHICAGO  BAR 

IN   TWO   VOLUNIKS 
VOL.  I 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1905 


Entered  ac(^ording  to  Act  of  Congress,  in  the  year  1873,  by 

JAMES    L.    HIGH, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

JAMES    L.    HIGH, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington- 


Entered  according  to  Act  of  Congress,  in  the  year  1890,  by 

JAMES    L.    HIGH, 
In  the  Ofhce  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1905,  by 

SHIRLEY   T.   HIGH, 
i£  the' jCifB'c'e', of  'the  Libriic_iau  of  Cc-^S^ess,  at  Washm&wn. ; 


M.  n.  vestaTj 

BOOK    COMPOSITION 
CHICAGO 


V    c,  r 


PREFACE  TO  FIRST  EDITION 


The  jurisdiction  of  courts;  of  equity  by  the  writ  of  injuno- 
'^       tion,  though  of  English  origin,  is  largely  the  result  of  Ameri- 
-v        can  growth  and  development.     Perhaps  no  branch  of  equity 
Act    Jw^'isprudence  owes  more  to  the  decisions  of  American  courts, 
and  the   growing  frequency  of  the   use  of  this  writ,  of  late 
years,  has  invested  the   subject  with   a  new   importance.     Of 
.    the  more  recent  text-books  upon  the  Law  of  Injunctions,  that 
V        of  Mr.   Hilliard,  professing  to  be  purely  American,   contains, 
^       of  course,  but  few  citations  of  English  cases,  while  the  English 
treatises   of   Mr.   Kerr   and   Mr.   Joyce,   though   complete   and 
^\        exhaustive  so  far  as  regards  the   English  authorities,  contain. 
r^        but  few  references  to  the  opinions  of  our  courts,   and  leave 
the  rich  field  of  American  decisions  almost  untouched.     And 
the  fact  that  very  many  of  the  English  authorities,  noticeably 
those  of  recent  date,  are  modified  by  statutes  which  are  inappli- 
^      cable  here,  has  seemed  to  the  author  to  create  an  additional 
^      necessity  for  a  work  which  should  be  based  upon  the  decisions 
"Nl,      of  both  countries,  and  which  should  present  the  general  prin- 
ciples   governing    courts    of    equity,    both    in    England    and 
America,  in  the  administration  of  preventive  relief. 

In  the  preparation  of  this  work,  the  cases  cited  have  been 
carefully  and  patiently  studied,  from  beginning  to  end,  without 
regard  to  the  head  notes,  and  the  author  has  constantly 
endeavored  to  present  the  principles  underlying  the  actual 
decisions  of  the  courts  upon  the  points  actually  involved  in  the 
cases.  To  analyze  and  weigh  these  decisions,  and  to  deduce 
therefrom  the  principles  underlying  them  all,  is  the  work 
which  he  has  attempted.    Believing  it  to  be  the  proper  function 

iii 


174847 


IV  PREFACE. 

of  legal  authorship  to  state  the  law  as  it  is,  rather  than  as  it 
ought  to  be,  he  has  studiously  refrained  from  the  obtrusion  of 
his  own  theories,  not  merely  because  they  would  carry  little 
weight  of  themselves,  but  because  in  these  days  of  multiplied 
book  making,  the  tendency  among  lawyers  is  to  use  text- 
books merely  as  guide-posts  to  direct  them  to  the  fountain- 
head  of  our  jurisprudence,  the  reports.  But  he  has  written  in 
the  firm  conviction  that  the  beneficent  system  of  equity,  whose 
"strong  right  arm"  constitutes  the  subject-matter  of  this 
w^ork,  is  destined  to  outlive  the  iconoclasm  of  modern  law 
reformers  and  codifiers,  and  to  constitute  for  all  time  an 
integral  part  of  our  jurisprudence.  That  his  work  is  without 
blemishes,  he  has  not  dared  to  hope;  but  that  it  will  be  found 
to  have  some  merits,  he  confidently  believes,  otherwise  it 
would  never  have  been  submitted  to  the  verdict  of  a  critical 

profession. 

'J.  L.  H. 

Chicagk),  January  1,  1873. 


PREFACE  TO  SECOND  EDITION 


The  rapid  growth  of  the  law  of  injunctions  has  rendered  a 
new  edition  of  this  work  necessary.  Nearly  twenty-three  hun- 
dred new  cases  have  been  embodied  in  the  present  edition, 
including  the  latest  decisions  of  the  English,  Irish  and  Ameri- 
can courts.  Several  new  chapters  have  been  added,  the  entire 
work  has  been  re-arranged,  and  much  of  it  has  been  re-written, 
to  conform  to  the  existing  state  of  the  law.  These  changes 
have  rendered  it  necessary  to  abandon  the  numbering  of  the 
sections  of  the  former  edition,  but  whatever  inconvenience  in 
citation  may  be  thus  caused,  will,  it  is  hoped,  be  counterbal- 
anced by  the  more  convenient  arrangement  of  the  different 
chapters  and  subdivisions.  The  work  has  been  done  under 
the  pressure  of  an  active  practice,  and  the  author  can  not 
hope  to  have  attained  such  satisfactory  results  as  might  have 
been  possible  under  more  favorable  conditions.  Nevertheless, 
he  has  spared  no  pains  to  insure  accuracy  and  thoroughness  in 
his  work.  More  freedom  has  been  used  in  the  expression  of 
individual  opinion,  and  in  the  criticism  of  doubtful  authorities, 
than  in  the  former  edition;  but  whether  the  work,  as  a  whole, 
has  been  thus  improved,  remains  for  the  profession  to  deter- 
mine. 

J.  L.  H. 

Chicago,  December,  1880. 


PREFACE  TO  THIRD  EDITION 


The  second  edition  of  this  work  was  published  in  December, 
1880.  More  than  fourteen  hundred  cases  upon  the  topics  of 
which  it.  treats  have  since  appeared  in  the  published  reports 
and  are  embodied  in  the  present  edition.  While  the  general 
plan  and  arrangement  of  the  work  remain  unchanged,  consider- 
able modifications  of  former  statements  have  been  rendered 
necessary,  and  more  than  two  hundred  pages  have  been  added 

to  the  text. 

J.  L.  H. 

Chicago,  January,  1890. 


VI 


PREFACE  TO  FOURTH  EDITION 


It  was  the  intention  of  the  author  of  this  work,  after  the 
publication  of  the  third  edition  in  1890,  to  make  no  further  revis- 
ion of  tlie  work  himself.  During  the  later  years  of  his  life  it 
was  his  desire  to  leave  to  the  present  editor  the  task  of  pi^epar- 
ing'  any  future  editions  which  might  from  time  to  time  become 
necessary.  It  is  in  the  consummation  of  this  wish,  as  well 
as  because  of  the  recent  rapid  growth  of  the  law  of  injunctions, 
that  the  fourth  edition  is  now  presented. 

While  there  has  been,  of  recent  years,  a  wide  development 
of  the  preventive  jurisdiction  of  equity  in  all  its  branches,  this 
development  has  been  especially  noticeable  in  connection  with 
injunctions  against  the  infringement  of  trade  marks,  including 
what  has  come  to  be  known  as  unfair  competition,  injunctions 
pertaining  to  streets  and  highways,  and  to  negative  covenants 
and  contracts  in  restraint  of  trade,  and,  finally,  the  use  of  the 
writ  which  has  resulted  from  the  labor  troubles  and  disturb- 
ances of  the  last  decade.  The  growth  of  the  law  in  the  three 
branches  enumerated  would  alone  be  sufficient  to  justify  a 
new  edition  of  this  work. 

In  bringing  out  the  present  edition,  the  editor  has  en- 
deavored, both  in  the  preparation  of  the  work  and  in  the  pre- 
sentation of  the  subject,  to  follow  as  closely  as  possible  along 
the  lines  adhered  to  by  the  author.  Numerous  modifications  of 
the  former  text  have  been  rendered  necessary,  and  in  several 
instances  the  text  has  been  entirely  re-written.     Nearly  twenty- 

vii 


VIU  PREFACE. 

three  hundred  cases  have  been  added  to  the  work,  making  a 
total  of  about  eighty-five  hundred  authorities  now  cited. 
Three  hundred  and  ninety  pages  have  been  added  to 
the  text  exclusive  of  the  table  of  eases  and  the  index.  Of 
this  additional  matter,  about  one-third  is  represented  by  new 
sections.  The  section  numbering  remains  unchanged,  the  new 
sections,  of  which  there  are  over  one  hundred  and  forty,  being 

indicated  by  lettering. 

Shieley  T.  High. 
Chicago,  1905. 


CONTENTS 


THE   REFERENCES    ARE   TO   THE   SECTIONS. 

VOLUME  I. 

CHAPTER  I. 
Of  the  Definition  and  Nature  of  the  Remedy 1 

CHAPTER  II. 

Of  Injunctions  Against  Actions  at  Law 45 

I. — Grounds   of  the   Jurisdiction 45 

II. — Defense  at  Law    gy 

III. — Suits  Pertaining  to  Real  Property 95 

IV. — Suits  in  Foreign  Courts 10:i 

V. — State  and  Federal  Courts lOS 

CHAPTER  III. 

Of  Injunctions  Against  Judgments 112 

I. — General  Features  of  the  Jurisdiction 112 

II Defense  at  Law    165 

III. — Judgments  Obtained  through  Fraud 190 

IV. — Accident,   Mistake,    Ignorance  and    Surprise 209 

V. — Irregular,  Erroneous  and  Void  Judgments 225 

VI. — Judgments  upon  Usurious   Contracts 232 

VII. — Judgments  upon  Gaming  Contracts 235 

VIII.— Set-offs  237 

IX. — Judgments  as  Affecting  Title 245 

X. — Court  in  which  the  Judgment  was  Rendered 265 

XI — Injunctions    against   Awards 273 

XII. — Judgments  by  Default  and  Confession 277 

CHAPTER  IV. 
Of  Injunctions  in  Aid  of  Proceedings  in  Bankruptcy 282, 

CHAPTER  V. 
Of  Injunctions  in  Ecclesiasticai.  Matters 304 

ix 


X  CONTENTS. 

THE    REFERENCES    ARE    TO    THE    SECTIONS. 

CHAPTER  VI. 

Of  Injunctions  Affecting  Reax  Property 323 

I. — General  Features  of  the  Relief 323 

II. — Injunctions    in  Aid  of   Possession 354 

III. — Judicial   Sales  under  Execution  against  Third    Persons.  367 

IV. — Cloud    upon    Title 372 

V. — Collection  of  Purchase  Money  on  Failure  of  Title 382 

VI.— Ejectment    414 

VII. — Landlord   and   Tenant 430 

VIII.— Homesteads    438 

CHAPTER   VII. 

Of  Injunctions  Pertaining  to  Mortgages 442 

I. — Injunctions  in  Behalf  of  Mortgagors 442 

II. — Injunctions  in  Behalf  of  Mortgagees 462 

III.  — Injunctions  Concerning  Third  Parties 469 

IV. — Waste  of  the  Mortgaged  Premises 478 

CHAPTER  VIII. 

Of    Injunctions   against   Taxes 484 

I. — Principles  Governing  the  Jurisdiction 484 

II.— Cloud   upon   Title 524 

III. — Property    Exempt   from    Taxation 530 

IV. — Municipal    Taxation    536 

V. — Municipal-aid   Taxes    561 

VI.— Bounties   570 

VII.— Parties    573 

CHAPTER   IX. 

Of  Injunctions  Pertaining  to  Streets  and  Highways 578 

CHAPTER  X. 

Of  Injitnctioxs   against  Railways 598 

I. — Principles    Governing   the   Jurisdiction 598 

II. — Failure  to  Compensate  for  Right  of  Way 622 

CHAPTER   XI. 

Of    Injunctions    against    Waste 649 

I. — Origin    and    Nature    of    the    Jurisdiction 649 

II. — Destruction    of    Timber 671 

III Equitable   Waste    680 

IV.— Parties    686 


CONTENTS.  XI 

THE    REFERENCES    ARE    TO    THE    SECTIONS. 

CHAPTER  XII. 

Of  Injunctions  against  Trespass 697 

I. — General  Features  of  the  Jurisdiction 697 

II. — Cutting    Timber    723 

III. — Trespass  to  Mines 730 

CHAPTER  XIII. 

Of    Injunctions    against    Nuisance 739 

I. — Grounds   of  the   Jurisdiction 739 

II. — Public  Nuisances    759 

III. — Nuisances  to  Dwellings 772 

IV. — Nuisances  to  Water    794 

V. — Streets    and    Highways 816 

VI. — Railways     826 

VII. — Bridges     833 

VIII.— Mill-dams    839 

CHAPTER  XIV. 

Of  Injunctions  for  the  Protection  of  Easements 848 

I. — Leading   Principles    848 

II — Easements   in   Light 859 

III. — Easements    in    Water 870 

IV. — Rights    of    Way 886 

CHAPTER  XV. 

Of  Injunctions  for  the  Protection  of  Franchises 897 

I. — Nature  and  Grounds  of  the  Relief 897 

II. — Roads    and    Railways 912 

III. — Bridges    917 

IV. — Ferries    927 

CHAPTER  XVI. 

Of  Injunctions  against  the  Infringement  of  Patents.... 934 

I. — Nature  and  Grounds  of  the  Jurisdiction 934 

II. — Effect  of  Prior  Adjudications 953 

III. — Principles    upon   which    Relief   is   Granted 900 

VOLUME  II. 

CHAPTER  XVII. 

Of  Injunctions  again.st  the  Infringement  of  Copyrights 988 

I. — Nature  of  the  Right  and  its  Infringement 988 

II. — Principles  Governing  the  Jurisdiction 1022 

III. — Dramatic  Compositions    1038 


Xii  CONTENTS. 

THE    REFERENCES    ARE    TO    THE    SECTIONS. 

IV. — Musical    Compositions    1053 

v.— Parties    1057 

CHAPTER  XVIII. 
Of  Injunctions  against  the  Infringement  of  Trade  Marks.  ..  .1063 

I. — Nature  of  the  Right  and   its   Infringement 1063 

II. — Principles   Gorerning   the   Relief 1085 

III.— Parties    llOa 

CHAPTER  XIX. 

Of  Injunctions  Pertaining  to  Contracts 1106 

I. — Nature  and  Grounds  of  the  Jurisdiction 1106 

II. — Promissory    Notes    1123 

III. — Negative    Contracts    1134 

IV.— Contracts    in    Restraint   of   Trade 1167 

CHAPTER  XX. 

Of  Injunctions  Pertaining  to  Private  Corporations 1184 

I. — Governing   Principles    1184 

II. — Injunctions  in   Behalf  of  Shareholders 1203 

III.— Ultra    Vires    1224 

IV.— Corporate  Elections   1230 

CHAPTER   XXI. 

Of  Injunctions  Pertaining  to  Municipal  Corporations 1236 

I. — Nature  and   Grounds   of  the  Jurisdiction 1236 

II. — Municipal  Improvements    1270 

III. — Municipal-aid   Subscriptions    1282 

IV.— Parties    1298 

CHAPTER  XXII. 

Ok  Injunctions  against  Public  Officers 1308 

CHAPTER  XXIII. 

Ok  I njunctionh  in  Partnebship  Matters 1330 

I. — Principles   Governing   the   Jurisdiction 1330 

II. — Dissolution    of    the    Firm 1342 

III. — Injunctions   in   Connection   with   Receivers 1350 

CHAPTER  XXIV. 
Ok  Injinctions  Plutaining  to  Executors  and  Administrators.  .1360 

CHAPTER  XXV. 
Ok  I.nji'nction.s  Pertaining  to  Si  retiks 1376 

CHAPTER  XXVI. 
Of  I.njt'nctions  Between  Hush.xm)  and  Wife 1387 


CONTENTS.  Xiii 

THE    REFERENCES    ARE    TO    THE    SECTIONS. 

CHAPTER  XXVII. 
Of  Injunctions  in  Behalf  of  Creditok.s 1402 

CHAPTER  XXVIII. 
Of  Injunctions  against  Stiukks  and  Boycotts 1415  a 

CHAPTER  XXIX.  ^ 

Of  the  Violation  of  Injunctions 141(; 

I. — Effect  of  the  Writ  and   its   Violation 141fj 

II. — What    Constitutes    a    Violation 1432 

III. — Remedy   for    Violation 1449 

CHAPTER  XXX. 

Of  the  Dissolution  of  Interlocutory  Injunctions 1467 

I. — Grounds  of  Dissolution 1467 

II. — Dissolution    upon    Answer 1505 

III. — Injunctions   against   Several   Defendants 1528 

IV. — Injunctions  against  Proceedings  at  Law 1536 

V. — Injunctions  Affecting  Realty 1542 

CHAPTER  XXXI. 
Of  the  Pabties  to  the  Action 1547 

CHAPTER  XXXII. 

Of  Practice 1565 

I. — Practice  in   Granting  Injunctions 1565 

II. — Amendments 1592 

III. — Practice  in  Dissolving  Injunctions 1599 

CHAPTER  XXXIII. 

Of  the  Bond  and  Damages 1619 

I.— Of   the   Bond 1619 

II. — Sureties 1635 

III.— Right  of  Action 1648 

IV. — Assessment  of  Damages 1657 

V. — Damages    ' 1663 

VI.— Counsel  Fees 1685 

CHAPTER  XXXIV. 

Of  Appeals    ^ 1693 

I. — Appeals  from  the  Granting  of  Injunctions 1693 

II. — Appeals  from  the  Dissolution  of  Injunctions 1702 

III. — Appeals  under  Court  of  Appeals  Act 1712 


TABLE   OF   CASES   CITED. 


THE    REFERENCES 


Abbot  V.  American   Hard  Rubber 

Co.,  1193. 
Abbott  V.  Allen,  362,  370. 
Abbott  V.   Edgerton,    493,   503. 
Abeel  v.  Culberson,   127. 
Abernethy  v.   Hutchinson,   967. 
Ableman  v.   Roth,   134,  135,  447. 
Abraham  v.  Bubb,  648. 
Abrams   v.   Camp,  169. 
Ackerman  v.  Hartley,  637,  638,  639. 
Ackerman    v.    Horicon    Iron    Mfg. 

Co.,  807. 
Ackerman  v.  True,  16. 
Adair    v.   Young,    894. 
Adams  v.  Beman,  444,  449. 
Adams  v.  Brenan,  1237,  1268,  1269. 
Adams  v.  Harrington,  568. 
Adams  v.  Hudson     County    Bank, 

1515. 
Adams  v.  Knapp,  28. 
Adams  v.  Michael,  708,  754. 
Adams  v.  Nebraska  City  Bank,  430. 
Adams  i\  Olive,  1580. 
Addleman   v.   Mormon,   371,   377. 
Addyston    Pipe    &     Steel    Co.    v. 

United  States,   1185. 
Adler  v.  Met.   El.   R.   Co.,  14,   725. 
Adriance  v.  National  Harrow  Co., 

970. 
Ady  I'.  Freeman,  1631, 
Aerators,  Limited,  v.  Tallitt,  1020, 

1058. 


ARE   TO    THE    PAGES. 

African  M.  E.  Church  v.  Conover, 

1545,  1546. 
Agard  v.  Valencia,  383. 
Ager  V.  Peninsular  &  0.  S.  N.  Co., 

979. 
Ahlers  v.  Thomas,  1450,  1526. 
Ah  Thaie  v.  Quan  Wan,  1629, 
Aiken  v.  Leathers,  1629. 
Ainsworth   v.   Bentley,    1158,   1181. 
Ainsworth  v.  Walmsley,  1034. 
Airs  V.  Billops,  322. 
Akerly    v.    Vilas,    128,    129, 
Akers    v.    Marsh,    745. 
Akin  V.  Davis,  16,  806. 
Akrill  V.   Selden,  5,  43,  682. 
Alabama  Gold  Life  Insurance  Co. 

V.  Lott,  441,  443,  468,  469. 
Alaska  Improvement  Co.  v.  Hirsch, 

1579. 
Albany    &    B.    M.    Co.    v.    Auditor- 
General,  444,  449,  450. 
Albany    City    Bank    v.    Schermer- 

horn,   1502. 
Albany     City     National     Bank     v. 

Maher,  487. 
Albany  &  N.   R.   Co.   v.   Brownell, 

572. 
Albany    Perforated    W.    R.    Co.    v. 

Hoberg  Co.,  1019. 
Albright  v.   Albright,   321. 
Albright  v.  Fisher,  1250. 
Albright  v.   Smith,   1610. 
Albright  r.  Teas,  1158. 
Albro    r.    Dayton,    169. 
Albuqerque  Bank  v.  Perea,  459,  476. 


XV 


XYl 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Alden  i:  Boston,  281. 

Alderson    v.    Commissioners,   1341, 

1460,  1472. 
Aldrich    r.   Howard,   755. 
Aldrich    r.    Reynolds,     1617,    1621, 

1625,  1629. 
Alexander  v.  Colcord,  1624.  1637. 
Alexander  v.  Fransham,  176,  241. 
Alexander    v.    Gish,    1609. 
Alexander  v.  Henderson,     43,    456, 

482. 
Alexander  v.  Morse,  1048. 
Alexander  v.  Mullen,   404. 
Alexander  v.   Tolleston   Club,  846. 
Alexandria  C.  R.  &  B.  Co.  v.  Dis- 
trict of  Columbia,  510. 
Alford  V.  Moore's  Adm'r,  1573. 
Allan  V.  Inman,  1375. 
Allegretti   v.   Allegretti    Chocolate 

Cream  Co.,  1037,  1041. 
Alleman  v.  Kight,  169. 
Allen  V.  Baltimore  &  O.  R.  Co.,  496. 
Allen  V.  Board,  725,  726,  1532. 
Allen  V.  Brown,  1624,  1632,  1634. 
Allen  v.  Burke,  1104. 
Allen  V.  Car  Co.,  46,  440,  466. 
Allen  r.  Dingley,  1459. 
Allen  I'.  Donnelly,  75. 
Allen  V.  Dunlap,  693. 
Allen  V.  Inhabitants  of  Jay,   1299, 

1300. 
Allen  V.  Intendant  of  La  Fayette, 

1284. 
Allen  V.  Medill,  236,  1528. 
Allen  V.  Phillips,  378. 
Allen  t\  Stewart.  143. 
Allen  V.  Taylor,  1178. 
Allen  r.  Thornton,  362,  363. 
Allen  V.  Watt,  147. 
Allen  r.  Willis,  1609. 
Allen  ().  Windstandly.  143. 
Allgood  V.  Merrybent  &  D.  R.  Co., 

608. 
Alliance  &   D.  C.  G.  Co.  v.  Dublin 

County  Council,  573. 


ARE    TO    THE    PAGES. 

Alliance   Trust  Co.   v.  Multnomah 

County,  468. 
Alliance  Trust  Co.  v.  Stewart.  1596, 

1622. 
Allington  Mfg.  Co.  v.  Lynch,  895. 
Allis   V.    Stowell,    930. 
Allis-Chalmers     Co.     v.     Reliable 

Lodge,   1410,   1412,   1413. 
Allison   V.   Carson,   20. 
Allison  V.  Louisville,  H.   C.   &  W. 

R.  Co.,  1299,  1310. 
Allison's  Appeal,  639. 
Allport  V.   Kelley,    1631. 
Allsopp  V.  Wheatcroft,  1159,  1175. 
Allwood  V.  Cowen,  478. 
Almy  V.  Piatt,  97. 
Alpers  V.  San  Francisco,  1251. 
Alsop  V.  Eckles,   342. 
Alston  V.   Limehouse,    1640. 
Alston  V.  Wheatley,  411,  436. 
Alsup  V.  Allen,   1485. 
Althen  v.   Kelly,  557. 
Altman    v.    Royal    Aquarium     So- 
ciety, 1132. 
Alva  State  Bank  v.  Renfrew,  470. 
Alwood  V.  Mansfield,  1612. 
Amberg  F.   &   I.   Co.   v.   Smith   & 

Co..  945. 
Ambos  V.  Railway,  1649. 
Amelia  Milling  Co.  v.  Tenn.  C.  I. 

&  R.  Co.,  20. 
Amelung  v.  Seekamp,  627,  845,  847. 
American  Association  r.  Hurst,  256. 
American  Association  Ball  Club  v. 

Pickett,   1149,   1153. 
American  Bank-Note  Co.  v.  N.  Y. 

El.  R.  Co.,  564. 
American  Bell  T.  Co.  v.  Brown,  924. 
American  Bell  T.  Co.  v.   McKees- 

port  T.  Co.,  897. 
American  Bell  T.  Co.  v.  Southern 

T.  Co.,  897. 
American  Bell  T.  Co.  v.   Western 

Tel.   &  Const.   Co.,  924. 


TABLE   OF  CASES   CITEJJ. 


xvn 


THE  REFERENCES  ARE  TO  THE  PAGES. 


American  Cable  Ry.  Co.  v.  Chicago 

City  Ry.  Co.,  924,  926. 
American  Cable  Ry.  Co.  v.  Citizens 

Ry.    Co.,   924,    926. 
American   Clay   Mfg.   Co.   v.   A.   C. 

M.  Co.,  1056,  1071. 
American  Coal  Company  v.  Consol- 
idation Coal  Company,  592. 
American  Co.  v.  City  of  Elizabeth, 

883. 
American  Co.  v.  Sullivan  Co.,  890. 
American  D.   &  I.  Co.   v.  Trustees, 

344. 
American   Electric   Novelty  Co.  v. 

Newgold,  902. 
American  Express  Co.  v.  Raymond, 

445. 
American  Fisheries  Co.  v.  Lennen, 

1157,   1170. 
American  Live  Stock  C.  Co.  v.  Chi- 
cago Live  Stock  Exchange,  1201. 

1484,   1655. 
American   M.   P.   Co.   f.  Vail,   894, 

902. 
American    Paper    P.    &    B.    Co.    v. 

National  F.  B.  &  P.  Co.,  899. 
American  Preservers  Co.  v.  Norris, 

1181. 
American  Purifier  Co.  v.  Christian, 

897. 
American  R.  &  C.  Co.  v.  Linn,  1218. 
American      School     of     Magnetic 

Healing,  y.  McAnnulty,  1342. 
American  S.   P.  Co.  v.  Burgess  S. 

F.  Co.,  897. 
American  Steel  &  Wire  Co.  v.  Wire 

Drawers'  Union,  783,  1410,  1413, 

1414. 
American    Strawboard    Co.    v.    In- 
dianapolis Water  Co.,  1666. 
American  Tel.  &  T.  Co.  v.  Pearce, 

604,  605. 
American  Tel.  &  T.  Co.  i'.  Smith, 

604,  605. 


American  U.   T.  Co.  v.  Union  Pa- 
cific R.  Co.,  1226. 

American  Waltham  Watch  Co.   v. 
Sandman,    1025,    1027. 

American  Waltham  Watch  Co.  v. 
U.  S.   W.    Co.,   1025,  1027. 

American  Washboard   Co.   v.   Sag- 
inaw Mfg.  Co.,  1077. 

Amerman  v.  Deane,  37,   1143. 

Amherst  College  v.  Allen,  213. 

Amick  V.  Bowyer,  367. 

Amis   V.    Myers,    142,   346. 

Amos   V.  Norcross,    37. 

Amoskeag  Co.  v.  Garner,  1023, 1087. 

Amoskeag  Mfg.  Co.  v.  Spear,  1033. 

Amsterdam  Knitting  Co.  v.  Dean, 
14,  671. 

Anchor    Electric    Co.    v.    Hawks, 
1158,   1176. 

Andel  v.  Starkel,  100. 

Anderson,  Ex  parte,  281. 

Anderson  v.  Biddle,  186. 

Anderson  v.  Commissioners,    1322. 

Anderson  v.  Dowling,  100. 

Anderson  «'.  Falconer,  1584,  1588. 

Anderson  v.  Frye,  331. 

Anderson  v.  Gordon,  57. 

Anderson  v.  Hall,  252. 

Anderson  v.  Harvey,  693. 

Anderson  v.  Lord  Mayor,  1288. 

Anderson  v.  Mayor,  707. 

Anderson  v.  Noble,  11. 

Anderson  v.  Oldham,  200. 

Anderson  v.  Orient   Fire   Ins.  Co., 
1276. 

Anderson  v.  Provident  L.  &  T.  Co., 
1630,   1631,   1635,   1636. 

Anderson   v.   Reed,   1498. 

Anderson  v.  Tydings,  149. 

Anderson  v.  United  States,  1186. 

Anderson  v.  Walton,  1377. 

Andrae  v.  Redfield,  9,  95. 

Andrews  v.  Feuter,  135. 

Andrews  v.  Glenville  Woolen  Co^ 
1579,   1628.   1634. 


XVlll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Andrews  v.   King  County,  36,  476, 

477. 
Andrews  v.  Knox  Co.,  1245,   1246, 

1435,   1438,   1555. 
Andrews    v.    Pratt,    1241. 
Andrews  v.  Rumsey,  494. 
Androvette  v.   Bowne,    1550. 
Angell    V.    Draper,    152,    318,    1397, 

1398. 
Angler  v.  May,  1572. 
Angler  v.  Webber,   1355. 
Anheuser-Busch  Brewing  Assn.  v. 

Piza,   1025. 
Anonymous,  24,  30,  68,  98,  362,  415, 

630,  1347,  1352,  1432. 
Anshutz  V.  Anshutz,  1390. 
Anstell  V.  McLarin,  163. 
Anthony  v.  Dunlap,  251. 
Anthony    v.    Stephens,    1644. 
Anthnoy  v.  Sturgls,  457. 
Apgar  i\  Christophers,  391. 
Apollinaris  Co.  v.  Venable,  1599. 
Appeal  of  Fowler,  1403. 
Applegate  v.  Morse,  830. 
Arbuckle  v.  Blackburn,  86. 
Arbuckle   v.   McClanahan,   419. 
Archbishop    of    San    Francisco    v. 

Shipman,  351,  353. 
Archer  v.  Terre  Haute  &  I.  R.  Co., 

496. 
Argo  V.  Barthand,  1245. 
Arkansas  Building  Ass'n  v.  Mad- 
den, 440,  456,  466. 
Arkansas    Democrat   Co.   v.    Pi'ess 

Printing  Co.,  1264. 
Armijo  r.  Baca,  1331. 
Armington   v.   Palmer,    1056,   1057, 

1071. 
Armistead  v.  Ward,  159,  1375,  1376, 

1377. 
Armitage  v.  Fisher,  1326. 
Armstrong   v.    City    of    St.    Louis, 

1287,  1289. 
Armstrong  i;.   Courtenay,   1118. 
Armstrong  v.  Hickman,  208. 


ARE    TO    THE    PAGES. 

Armstrong  v.  Ogden  City,  530. 
Armstrong  v.  Potts,  1478. 
Armstrong  v.  Sanford,  51,  349,  418^ 

1498. 
Armstrong   v.   Waterford   &   L.   R. 

Co.,    602,   603. 
Arnold  v.   Bright,   335. 
Arnold  v.  Hawkins,  511. 
Arnold   v.   Henry,  1326,  1332. 
Arnold  v.  Klepper,  702. 
Arnold  v.  Middletown,  448. 
Arthur  v.   Batte,   254. 
Arthur  v.  Case,  830. 
Arthur  v.   Oakes,   1410,  1420,   1421.. 
Artman   v.    Giles,   1397,   1401,   1527. 
Asbestos    Felting   Co.   v.    U.    S.    &. 

F.   S.   Felting  Co.,  891. 
Asevado  v.  Orr,   1593,  1596. 
Ashby  V.  Chambers,  1621. 
Ashby  V.   Tureman,  1584,   1586. 
Ashby  V.   Wilson,  1134,  1135. 
Ashe  V.  Johnson's  Adm'r,  1094. 
Asheville    St.    Ry.    Co.   v.    City   of 

Asheville,  9. 
Ashton  V.  Jones,  169. 
Ashworth  v.  Browne,  859. 
Aslatt  V.   Mayor,   1326. 
Aspden  v.   Seddon,   698. 
Assignees  v.  Wilkins,  982. 
Aston  V.  Aston,  648,  649,  650. 
Atchison   'V.    Peterson,   838. 
Atchison   &    N.   R.   Co.   v.   City   of 

Troy,   1546. 
Atchison  Street  R.  Co.  v.  Missouri 

P.  R.  Co.,  588. 
Atchison,    T.    &    S.    F.    R.    Co.    v.. 

Fletcher,  1550. 
Atchison,    T.    &    S.    F.    R.    Co.    v. 

General  Electric  Co.,  566,  588. 
Atkins  V.  Chilson,  400,  823.. 
Atkinson,  In  re,  284. 
Atkinson  r.  Beckett,  1497. 
Atkinson   r.   Doherty,  34,  35. 
Atkinson  v.  Hewitt,  658. 


TABLE  OF  CASES  CITED. 


T11C 


IHE    REFERENCES 

Atlantic  City  W.  W.  Co.  v.  At- 
lantic City,   1183. 

Atlantic  City  W.  W.  Co.  v.  Con- 
sumers W.  Co.,  14,  864. 

Atlantic  Delaine  Co.  v.  Tredick, 
1109. 

Atlantic  &  P.  T.  Co.  v.  Union 
Pacific  R.  Co.,  1226. 

Attorney-General  v.  Acton  Local 
Board,  729. 

Attorney-General  v.  Albany  Hotel 
Co.,  1577. 

Attorney-General  v.  Algonquin 
Club,   1137. 

Attorney-General  v.  American  To- 
bacco  Co.,   1222. 

Attorney-General  v.  Ancaster,  1522. 

Attorney-General  v.  Ashborne  R. 
G.  Co.,  46. 

Attorney-General  v.  Aspinwall, 
1247. 

Attorney-General  v.  Bank  of  Mich- 
igan, 1192. 

Attorney -General  v.  Bank  of  Ni~ 
agara,  1191,  1192. 

Attorney-General  v.  Bay  State 
Brick  Co.,  788. 

Attorney-General  v.  Bradford 
Canal,  774. 

Attorney-General  'V.  Brighton  &  H. 
C.    L.    Assn.,    782. 

Attorney-General  v.  Brown,  724, 
787. 

Attorney-General  ^\  Burrell,   1318. 

Attorney-General  v.  Burrows,  629. 

Attorney-General  v.  Cambridge 
Consumers    Gas    Co.,    787. 

Attorney-General  v.  Carmarthen, 
1188. 

Altorney-General  v.  Chamberlane, 
721. 

Attorney-General  v.  City  of  Eau 
Claire,    57,   58,  730,   1544. 

.Attorney-General  v.  Cleaver,  707, 
723. 


ARE    TO    THE    PAGES. 

Attorney-General  v.  Cockermouth 
Local  Board,   729. 

Attorney-General  v.  Cohoes  Com- 
pany, 721,  723. 

Attorney-General  v.  Colony  Hatch 
Lunatic    Asylum,    710,    774. 

Attorney-General  v.  Commission- 
ers of  Kingstown,  42,  1210,  1274. 

Attorney-General  v.  Compton,  1529. 

Attorney-General  v.  Conservators, 
731. 

Attorney-General  v.  Council  of 
Birmingham,  774. 

Attorney-General  v.  County  Coun- 
cil of  Mayo,  782,  1529. 

Attorney-General  v.  Delaware  &  B. 
B.  R.  Co.,  723,  800,  1227. 

Attorney-General  v.  Esher  L.  Co., 
1529. 

Attorney-General  v.  Forbes,  726, 
787. 

Attorney-General  v.  Foundling 
Hospital,  455,  1189. 

Attorney-General  v.  Gee,  776. 

Attorney-General  v.  Great  Eastern 
R.  Co.,  838. 

Attorney-General  r.  Great  North- 
ern R.  Co.,  1204,  1221,  1222,  1444. 

Attorney-General  v.  Greenville  & 
H.   R.   Co.,   791. 

Attorney-General  r.  Guardian  Mu- 
tual Life  Insurance  Co.,  1198. 

Attorney-General  v.  Guardians  of 
Poor,   776. 

Attorney-General  v.  Hunter,  710, 
717,  732. 

Attorney-General  v.  Johnson,  722, 
726. 

Attorney-General  v.  Lea's  Heirs, 
707,  1529. 

Attorney-General  v.  Leeds  Corpor- 
ation, 774. 

Attorney-General  v.  Marsh,  1489. 

Attorney-General  v.  Mayor,  9,  20, 
1188,  1247,  1248,  1317. 


XX 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Attorney-General  v.  Mayor  of  Liv- 
erpool, 1493. 

Attorney-General  i\  Mayor  of  Pat- 
erson,  719. 

Attorney-General  v.  Mayor  of 
Waterford,    42,    1274. 

Attorney-General  v.  Mid-Kent  R. 
Co.,  594. 

Attorney-General  v.  New  Jersey  R. 
R.  &  T.  Co.,  3. 

Attorney-General  i\  New  York  & 
L.   B.    R.    Co.,   731,    800. 

Attorney-General  r.  Nichol,  30, 
707,  818, 

Attorney-General  i\  Oakland 
County  Bank,  1474,  1486,  1499, 
1502,  1503. 

Attorney-General   v.   Pearson,   292. 

Attorney-General  v.  Perkins,  707, 
752,    1529. 

Attorney-General  v.  Railroad  Com- 
panies, 17,  32,  57,  1544. 

Attorney-General  v.  Richards,  1530. 

Attorney-General  v.  Richmond, 
774. 

Attorney-General  v.  Sheffield  Gas 
Consumers    Co.,    12,    703,    787. 

Attorney-General  r.  Shrewsbury 
Bridge  Co.,  729. 

Attorney-General  v.  St.  Cross  Hos- 
pital, 313. 

Attorney-General  v.  Steward,  720, 
735,  740. 

Attorney-General  v.  Terry,  722. 

Attorney-General  r.  Utica  Insur- 
ance  Co.,   29,   861. 

Attorney-General  v.  Welsh,  293, 
1099. 

Attwood  V.  Barham,   384,  1104. 

Atwater  v.  Castner,  1023. 

Atwell    V.    Barnes,    525. 

Atwill  V.  Ferrett,  977,  1011. 
Auburn   &  C.   P.   R.   Co.   r.   Doug- 
lass, 855.  857,  858. 


ARE    TO    THE    PAGES. 

Audenried  v.  Philadelphia  &  R.  R. 

Co.,  4,   8,   592. 
Augusta   Ice   Co.   v.   Gray,   1645, 
Augustin  V.   Dours,  249. 
Augustine  v.   McFarland,   273,  285. 
Aurora    &    Cincinnati    R.    Co.    v. 

Miller,  622. 
Aurora  &  C.  R.  Co.  v.  City  of  Law- 

renceburgh,  584. 
Austin    v.    Coggeshall,    1238,    1242, 

1244. 
Avant  V.  Flynn,  445,  450,  481 
Avegno  v.   Johnston,    1592. 
Avery    r.   Andrews,    1453. 
Avery  v.  Fox,  768,  1337. 
Avery  v.  Job,  36,  1237.  1243,  1245. 
Avery  v.  N.  Y.  C.  &  H.  R.  R.  Co., 

845. 
Avery  v.   Onillon,  1478. 
Avery  v.  Ryan,  1596. 
Axmann  r.  Lund,  969. 
Ayers  v.  Lawrence,  1310. 
Ayers  i'.  Widmayer,  445,  455. 
Ayling  v.   Hull,  890. 
Aynsley  v.  Glover,  822. 


B 


Babcock  v.  McCamant,  192. 
Babcock  v.  New  Jersey  S.  Y.  Co., 

29,  735,  740. 
Bach   r.   Goodrich,  240,  344,  345. 
Bachelder  v.  Bean,  175. 
Back  V.  Stacey,  819. 
Back  V.  Stacy,  822. 
Backus  r.   Gould,   953. 
Bacon  v.  Jones,   879,   881,   910. 
Bacon  r.    Spottiswoode,   927. 
Bacon  v.  Walker,  1285. 
Badische  Anilin  &  Soda  Fabrik  v. 

Schott,    1158,    1176. 
Bagg  r.   Detroit,  494,   531, 
Bagnall   v.    Villar.   424. 


TABLE  OF  CASES  CITED. 


XXI 


THE    REFERENCES 

Bagshaw  v.  Eastern  R.  Co.,  1204. 

Bailey   v.   Collins,    1157. 

Bailey  v.  Devereux,  72. 

Bailey  v.   Gibson,   1589. 

Bailey   v.    Hobson,    329. 

Bailey  v.   Ross,  1373. 

Bailey  v.  Schnitzius,  4. 

Bailey   v.   Simpson,  431,  1552. 

Bailey  v.  Stevens,  135. 

Bailey  v.  Taylor,  982. 

Bailey  v.  Willeford,  139. 

Bailey  v.  Taylor,  982. 

Bailey  W.  M.  Co.  v.  Adams,  901. 

Baird  v.  Shore  Line  R.  Co.,  796. 

Baird  v.  Wells,  1196. 

Baker  v.  Baker  &  Co.,  1664. 

Baker  v.  Bohannon,  740. 

Baker  v.  Mitchell,  1326. 

Baker  v.  Pottmeyer,  1157. 

Baker  v.  Redd,  196,  197. 

Baker  v.   Rinehard,   142,   143,   185, 

347. 
Baker  v.  Ryan,  233. 
Baker  v.  Taylor,  936,   937,   1548. 
Baker  &  Co.  v.  Sanders,  1037,  1041. 
Balch  V.  Wastall,  1398. 
Baldwin  v.  Buffalo,  553. 
Baldwin  v.  Darst,  327. 
Baldwin  v.  Hewitt,  451. 
Baldwin  v.  Murphy,  184. 
Baldwin  v.  North  Branford,  542. 
Baldwin  v.  Shine,  451. 
Baldwin  v.  Society,  1105. 
Baldwin  v.  Tucker,    482,    483,    520, 

521. 
Baldwin  i-.  Wilbraham,  1238,  1313. 
Baldwin  v.  York,  383. 
Balkum     v.     Harper's   Adm'r,    163, 

1369,   1657. 
Ball   V.   Ray,   746. 
Ball   V.    Storie.   262. 
Ball    c.    Tunnard,    1495. 
Ballard  i\  Appleton,  533. 
Ballentine  r.  Webb.  736. 
Balliet   o.   Cassidy,   970. 


ARE    TO    THE    PAGES. 

Ballin  v.   Ferst,    1402. 

Ballon   V.    Inhabitants   of   Hopkin- 

ton,  771. 
Ballow  V.  Wichita  County,  169. 
Balls    V.    Balls,    1397. 
Baltimore  Car  Wheel  Co.  v.  Bemis, 

970. 
Baltimore  &  E.  S.  R.  Co.  v.  Spring, 

1278. 
Baltimore  L.  I.  Co.  v.  Gleisner,  970_ 
Baltimore  &  O.  R.  Co.  v.  Ford,  127. 
Baltimore  &  O.  R.  Co.  v.  Strauss„ 

593,   793. 
Baltimore   &   0.   R.  Co.  v.  Wheel- 
ing, 1211,  1517,   1564. 
Baltimore  R.  Co.  c.  Highland,  611. 
Baltzell   V.   Randolph,   137. 
Bancroft  v.  Thayer,  1341. 
Banger's  Appeal,  528. 
Bank  v.  Ferris,  469. 
Bank    v.    Hill,    95. 
Bank  of  B.  Falls  r.  Rutland,  117. 
Bank    of   California   v.   Fresno   C. 

&  I.  Co.,  14. 
Bank  of  Chenango  ;;.  Cox,  435. 
Bank    of    Kentucky    v.    Hancock, 

252. 
Bank    of    Kentucky   v.    Stone,    47, 

48,  444. 
Bank  of  Monroe  v.   Gifford,   1595, 

1615. 
Bank   of    Orleans    v.    Skinner,    50, 

1540,  1541,  1552. 
Bank  of  Turkey  r.  Ottoman,  40. 
Bank  of  U.   S.  v.  Schultz,  54,  242, 

350. 
Bank    of    Washington    v.    Arthur, 

1101. 
Bankers'  Life  Ins.  Co.  v.  Bobbins, 

149,  225. 
Banks  r.  Busey.  92. 
Banks   r.   Gibson,   1054,   1356. 
Banks   v.   McDivitt,   953,   976. 
Banks  v.  Parker,   338. 
Banks  v.  State,  1624,  1625. 


XXll 


TABLE  OF  CASES  CITED. 


THE  REFERENCES 

Baptist  Church  v.  Witherell,  292, 
309. 

Baragree  r.  Cronkhite,  151. 

Barber  v.  Reynolds,  164. 

Bardes  r.   Hawarden  Bank,   283. 

Bardonski   r.  Bardonski,  213. 

Barfield  r.  Nicholson,  986,  1116, 
1182,   1461,   1462. 

Barker  r.   City  of  Omaha,  532. 

Barker    v.    Elkins,    212. 

Barker  v.  Millard,  98. 

Barnard  v.  Commissioners,  14. 

Barnard  v.  Davis,  280,  1565,  1567. 

Barnard   r.   Gibson,  927. 

Barnard    f.    Sherley,    765. 

Barnard   r.  Wallis,  813. 

Barneich  i:  Mercy,  829. 

Barnes  r.  Calhoun,   752. 

Barnes  v.   McAllister,  1121. 

Barnes  r.  Racine,  725,  1532. 

Barnes  v.  Williams,  1238,  1240. 

Barnesville   r.   Murphy,   1243. 

Barnett  v.  Johnson,  828. 

Barney  v.  Luckett,  391. 

Barnum  r.  Minnesota  T.  R.  Co., 
785. 

Baron  v.  Korn,  663,  678. 

Barr  v.  Collier,  1499. 

Barr    r.    Deniston,    456. 

Barr  v.  Essex  Trades  Council,  1410, 
1411,    1415,  1416. 

Barr  Company  r.  New  York  &  N. 
H.    A.    L.    Co.,    896. 

Barre  Water   Co.   r.   Carnes,   1635. 

Barret  r.  Blagrave,  1125,  1126. 

Barrett  r.  Bowers,  1631. 

Barrett  v.  Fish,  965,  967. 

Barrett  v.  Mt.  Greenwood  Ceme- 
tery  Assn.,   764. 

Barrow  r.  Davis,  441. 

Barrow  v.  Richard,  1141. 

Barrow  r.  Robichaux,   166,  209. 

Barry  r.  Barry,  637. 

Barry   r.   Urune,  258. 


ARE    TO    THE    PAGES. 

Bartholomew  v.  Harwinton,  542, 
543,  1490. 

Bartholomew  v.  Lutheran  Congre- 
gation,   294. 

Bartlett  v.  Bartlett  &  Son,  20. 

Bartlett  v.  Loudon,  362,  374. 

Bartlette  v.  Crittenden,  967,  993. 

Bartley  v.  Spaulding,  323. 

Barton  r.  Moffit,  323. 

Barton  v.  Union  C.  Co.,  764. 

Basche  v.  Pringle,  1640. 

Bascom  v.  Bascom,  1390. 

Basket  v.  Moss,  407. 

Basket  v.  University  of  Cambridge, 
954. 

Ba  Som  v.  Nation,  549. 

Bass  V.  City  of  Shakopee,  1291, 
1454. 

Bass  V.  Metropolitan  W.  S.  El.  Co., 
640. 

Bass  V.  Nelms,  151. 

Bastian  v.  The  Modern  Woodmen 
of  America,   1219. 

Bateman  v.   Florida  C.   Co.,  1259. 

Bateman  t\  Ramsay,  201. 

Bateman  v.  Willoe,   133,  134,  169. 

Bates  V.  Slade,  683. 

Bates  V.  Taylor,  1338. 

Bath  V.   Sherwin,  75. 

Battalion  Westerly  Rifles  r.  Swan, 
4. 

Battle  V.   Finlay,   1078. 

Battle  r.  Stephens,  51,  1552. 

Bauer  Grocer  Co.  v.  Zelle,  1561. 

Baugher  r.  Crane,  393,  398,  399.  655. 

Baumgarten  r.  Broadway,  1157. 

Baxter  v.  Baxter,  145. 

Baxter  r.  Board  of  Trade  of  Chi- 
cago, 1195. 

Baxter  r.  Combe,  909,  911. 

Bay  State  Brick  Co.  v.  Foster,  563, 
569. 

Bayles  v.   Dunn,  550. 

Bayless  r.  Orne,  1211. 

Bayliss  v.  Scudder,  1629. 


TABLE  OF  CASES  CITED. 


xxm 


THE    REFERENCES 

Beach  v.  Hobbs,  897. 
Beach  v.  Shoenmaker,   493. 
Beach  v.   Sparks   Mfg.   Co.  770. 
Beadel  v.  Perry,  817,  820. 
Beaird    v.    Foreman,    169. 
Beal  V.  Chase,  1157,  1168. 
Beal  V.  Gibson,   1510,   1511. 
Beale  v.   Seiveley,   362,   364,   370. 
Bealey  v.  Shaw,  760,  763,  766. 
Beall  V.  Shaull,  1396. 
Bear  v.  Chase,  283. 
Beaser  v.  City  of  Ashland,  47,  349, 

498,  530. 
Beatty  v.  Kurtz,  308,  675,  682,  1533, 

1534. 
Beatty  v.  Smith,  50,  143,  667. 
Beauchamp  v.  Board  of  Supervis- 
ors, 1238,  1242,  1487,  1577. 
Beauchamp  v.  Marquis  of  Huntley, 

114,   115. 
Beauchamp  r.   Putnam,  100. 
Beauchamp    v.    Supervisors,     1238, 

1242,   1487,    1577. 
Beaudry  v.   Felch,  169. 
Becher  v.  Wells  F.  M.  Co.,  1225. 
Beck  V.   Allen,    532. 
Beck  V.  Fransham,  176,  252. 
Beck  V.  Ry.  Teamsters'  Union,  34, 

1410,  1411,  1412,  1413,  1415,  1416, 

1419. 
Becker  v.  Anderson,  1370. 
Becker  v.  L.  &  M.  S.  Ry.  Co..  12. 
Becker  v.  McGraw,  50,  669. 
Beckford  v.  Kemble,  114,  116. 
Beckwith  v.  Blanchard,  55. 
Beddow  r.  Beddow,  60,  94. 
Bedford   Springs   Co.    v.    McMeen, 

1232. 
Beebe   r.    Guinault,    15,    1643. 
Beebe  v.   Robinson,   1325,   1328. 
Beecher  v.  Bininger,  38,  281. 
Beedle  v.  Bennett,  926. 
Beeson  v.  Beeson,  1630. 
Beeson  v.  City   of  Chicago,   566. 
Behn  v.  Young,  24. 


ARE    TO    THE    PAGES. 

Behrens  v.  McKenzle,  1629. 

Beidler  v.  Kochersperger,  460. 

Bein  v.  Heath,  1604,  1606. 

Belcher  v.   Steele,   1640. 

Belding  x\  Turner,  916. 

Belfast  Shipowners  Co.,  In  re,  114. 

Belknap  v.  Belknap,  1334,  1335. 

Belknap    v.    Schild,   923. 

Bell  V.  Calhoun,  1101. 

Bell  V.  Chadwick,  666. 

Bell  V.  City  of  Platteville,  1282. 

Bell  r.  Craig,  1373. 

Bell  V.  Francke,  1385. 

Bell  V.  Gamble,  84. 

Bell  V.  Hull  &  Selby  R.  Co.,  1480, 

1486. 
Bell  V.  Locke,  1051,  1052. 
Bell  V.  Ohio  &  P.  R.  Co.,  680,  792. 
Bell  V.  Riggs,  705. 
Bell  V.  Romaine,  107. 
Bell  V.  Singer  Co.,  970. 
Bell  r.  Walker,  963. 
Bell  V.  Whitehead,  956. 
Bell  V.  Williams,  225. 
Bellevue    Imp.    Co.    v.    Village    of 

Bellevue,  441. 
Bellinger  v.  White,  495. 
Bellona  Company's  Case,  1486. 
Belmore  v.  Belmore,  1404. 
Belohradsky  v.  Kuhn,  1112. 
Beman  v.  Rufford,  1204,  1208,  1221. 
Bemis  r.  Gannett,  1595. 
Bemis    r.   Upham,   771,  801. 
Bendelow  v.  Guardians,  737. 
Benedict  v.  Benedict,  1608,  1609. 
Benn  v.  Chehalis  County,  498. 
Benn  v.  Leclerq,  1002. 
Benner  v.  Junker,  735. 
Benner  r.  Kendall,  357. 
Bennet  v.  Musgrove,  152,  318,  1397, 

1398. 
Bennett  v.  Brown,  261. 
Bennett  r.  Hetherington,  1273,  1642. 
Bennett  v.  Kimball,  1374. 
Bennett  v.  Lambert,  1630. 


2X1V 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Bennett  v.  McFadden,  350,  1476. 
Bennett   v.   McKinley,    1020,    1022. 
Bennett  v.  Murtagh,  836. 
Bennett   i\   Seligman,  816. 
Bennett  Bros  Co.  v.  Congdon,  1644, 

1646. 
Bensley  v.  Mountain,  602. 
Bentley  v.  Joslin,  1600. 
Bently  v.  Bates,  640. 
Bently  v.  Dillard,  135. 
Benton  v.   Roberts,   169. 
Berger  o.  Armstrong,  1181. 
Berkeley   r.  Brymer,  1566. 
Berlin    Machine    Works    v.    Perry, 

1159,  1175. 
Berliner  Gramaphone   Co.   v.   Sea- 
man, 1093,  1095,  1148,  1663,  1664, 

1668. 
Bernard  v.  Meara,  646. 
Berry  v.  Berry's  Heirs,  1528. 
Bertram  v.  Sherman,  1655. 
Bessette  v.  Conkey  Co.,  1423,  1449, 

1451,  1666. 
Bethune  v.  Wilkins,  669. 
Bettison  v.  Jennings,  1483. 
Bettman  r.  Harness,  21,  664. 
Betts  V.  DeVitre,  922. 
Betts  );.  Williamsburgh,  517. 
Beveridge  v.  Lacey,  725,  1532. 
Beverly  v.  Sabin,  442. 
Bibb  V.   Hitchcock,   268. 
Bickford  v.  Skewes,  887,  1486. 
Biddle  i\  Ash,  825. 
Biddulph   /-.  Vestry  of  St.  George, 

747. 
Bidwell   r.   Huff,  472,  527,  531. 
Bierer  /;.  Hurst.  703. 
Big   Mountain   Iron.   Co.'s   Appeal, 

384,   385,   386. 
Bigelow  V.  Andress,  97,  152,  1397. 
Bigelow    V.    Hartford    Bridge    Co., 

725,  726.  1532. 
Blggerstaff  v.   Hoyt,   1379. 
Biggs  V.  Rnckingham,  1323. 
Biggs   r.    Head,   90. 


ARE    TO    THE    PAGES. 

Bigham  v.  Gorham,  196,  198. 
Bill  V.  Sierra  Nevada  Co.,  41,  1209. 
Billard  <;.  Erhart,  785,  1425. 
Billingslea  v.  Gilbert,  53,  54,  1511. 
Billups  V.  Sears,  137. 
Binford  c.  Boardman,  93. 
Bingham   v.   City  of  Walla  Walla, 

556. 
Bininger  i\  Clark,  1357. 
Binney's  Case,  1193. 
Bird  r.  Brancher,  1445. 
Bird  r.   Lake,  1120.  1121.  1178. 
Birdsall  v.  Tiemann,  1142. 
Birdseye  v.   Village  of  Clyde,   523, 

525. 
Birmingham  v.  Cheetham,  1340. 
Birmingham  C.  Co.  v.   Loyd,  695. 
Birmingham  M.  &  M.  Co.  v.  Mutual 

L.  &  T.  Co.,  1502,  1503. 
Birmingham  M.  R.  R.  Co,  v.  City 

of  Bessemer,  1500. 
Birmingham  &  P.  M.  S.  R.  Co.  v. 

Birmingham  S.  R.  Co.,  859. 
Birmingham  T.  Co.  r.  Birmingham 

R.  &  E.  Co.,  565,  604,  605. 
Birmingham  T.  Co.  r.  Southern  B. 

T.  &  T.  Co.,  576. 
Birmingham     Vinegar     B.     Co.  .  v. 

Powell,  1025,  1027. 
Bishop  ('.  Baisley,  695. 
Bishop  V.  Moorman,  242,  344. 
Bishop   V.  Rosenbaum,  75. 
Bishop    of    Chicago     v.     Chiniquy, 

382.  383. 
Bishop  of  London  r.  Web,  644,  645. 
Bissell  C.  S.  Co.  r.  Goshen  S.  Co., 

1662,  1668,  1669,  1670. 
Bitting's   Appeal.  829. 
Bixler    r.   Summerfield,   1204,   1205, 

1213. 
Black  V.  Delaware  &  R.  Co.,  1213. 
Black     r.    Good    Intent    Tow-boat 

Co.,  4. 
Black  r.  Huggins,  1479. 
Black  r.  Smith,  258. 


TABLE  OF  CASES  CITED. 


XXV 


THE    REFERENCES 

Blackburne  v.  Somers,  775. 
Blackshire  c.  Atchison,  T.  &  S.  F. 

R.  Co.,  556. 
Blackwell  r.  Crabb,  1074. 
Blackwell  (-.  Wright,  1023,  1074. 
Blackwell  M.  Co.  v.  McElwee,  1502. 
Blackwood  (;.  Van  Vleet,  354,  631. 
Blagen   r.  Smith,  749. 
Blagrave   v.    Blagrave,   1123. 
Blaine  v.  Brady,  716. 
Blair  v.  Reading,  1631,  1635. 
Blaisdell  v.  Stephens,  766. 
Blake  v.  Blake,  1425. 
Blake  v.  Brooklyn,  517. 
Blake  v.  Greenwood  Cemetery,  919. 
Blake   r.  White,  1377. 
Blakemore  v.  Glamorganshire,  3,  8. 
Blakemore  i\  Stanley,  1136. 
Blakeney  v.  Hardie,  67. 
Blakeslee  v.  M.   P.  R.  Co.,  51. 
Blakeslee  r.  Murphy,  222,  223,  225. 
Blakey   v.   Kurtz,   16,   910. 
Blakey  v.  National  Mfg.  Co.,  883. 
Blanc  V.  Meyer,  468. 
Blanchard  v.  Doering,  843. 
Blanchard  v.  Sprague,  909,  910. 
Blanton   i\   Merry,  1317. 
Blanton    r.   Southern  F.  Co..   1322. 
Blatchford   r.   Ross,  1211. 
Blessing  v.  City  of  Galveston,  529. 
Bliss   V.   Greeley,  840. 
Bliss   V.   Kennedy,   830. 
Bliss  V.   Rice,   770 
Blizzard   v.   Nosworthy,  387,  1555. 
Blodgett    i\    Northwestern    El.    R. 

Co..  563. 
Blofleld  r.  Payne,  1050. 
Blomfield   r.  Eyre,  53. 
Blondheim  v.  Moore,  51. 
Blood  i:  Blood,  22. 
Blood  V.  Martin,  1447. 
Bloomfield   v.   Snowden,   1551. 
Bloomfield  G.  M.  Co.,  In  re.  1467. 
Bloomingdale  ?•.  Barnard,  421. 
Bloss,  In  re.  279. 


ARE    TO    THE    PAGEa. 

Bloss    (;.    Hull,    139. 

Bloss  i\  Tacke,  1495. 

Blount    c.    Societe    Anonyme,    882, 

883,  886,  887,  1668. 
Blow  r.  Taylor,  1483. 
Blue   Jacket   C.    C.    Co.    v.    Scherr, 

441,    466,    468. 
Blum  f.  Loggins,  1498. 
Blum    r.    Schram,    1401. 
Blundon    o.    Road    Commissioners, 

1485. 
Blunt  r.  Carpenter,  540. 
Blunt  c.  Patten,  957,  977,  993. 
Blyth  L\  Peters,  165. 
Board    v.   Texas   &   P.   R.    W.    Co., 

1311. 
Board  of  Commissioners  v.  Barker, 

441. 
Board  of  Commissioners  r.  Dailey, 

468. 
Board  of  Commissioners  v.  Elston, 

467. 
Board  of  Commissioners  v.  Gillies, 

1238,    1268. 
Board    of   Commissioners    r.    Hall, 

539. 
Board  of  Commissioners  r.  Spang- 

ler.  1276. 
Board   of  Commissioners   r.    State, 

1262. 
Board  of  Commissioners  r.  Thorn, 

1272. 
Board  of  Education  v.  Booth,  1245, 

1246. 
Board  of  Education  r.  Guy,  544. 
Board    of    Education    r.    Franklin, 

408. 
Board  of  Education  r.  Holt,  1245. 
Board   of  Liquidation    r.   McComb, 

1324. 


Board    of    Supervisors     r 

Circuit  Judge,  23. 
Bobins  r.  Latham,  14. 
Boden    r.    Dill.    1602. 


Wayne 


XXVI 


TABLE  OF  CASES  CITED. 


THE  REFERENCES 

Bodman    v.    Lake  Fork    Drainage 

District,  43. 
Bodwell  l:   Crawford,  399. 
Boedicker  v.  East,  685. 
Bogart  c.   City  of  Elizabeth,  451. 
Bogert   i:  City  of  Elizabeth,   441. 
Bogert  V.  Haight,  50,  1552. 
Bogert    V.    Jackson    Circuit   Judge, 

23. 
Bogey  f.  Shute,  627,  628. 
Boggess  V.  Lowrey,  316. 
Bogue   r.  Houlston,  951. 
Bohan  v.  Casey,  1630. 
Bohlman  v.  Green  Bay  &  L.  P.  R. 

Co.,  602. 
Bohlman  (;.  Green  Bay  &  M.  R.  Co., 

602,  604. 
Bohn  V.  Bogue,  957. 
Boinay  r.  Coats,  245,  339,  1652. 
Boker  r.  Curtis,  165. 
Bolander  r.  Peterson,  1044. 
Boley  V.   Griswold,  133,   238 
Boiling  V.  Tate,  1622,  1631,  1635. 
Bolton    v.    London    School    Board, 

1496. 
Bolton  r.  McShane,  1291. 
Bonaparte  /'.  Camden  &  A.  R.  Co., 

602,  603,  604. 
Bonaud  v.  Genesi,  1644. 
Bond  r.  Kenosha,  467. 
Bond  V.  Penn.   Co.,  613. 
Bonnard  v.  Perryman,  969. 
Bonnel  v.  Allen,  634. 
Bonner  v.   Great  Western   R.   Co., 

822. 
Bonnett  v.   Sadler,   399,    756 
Bonser  v.   Cox,   1376. 
Boone  v.   Small,  159. 
Booraem   v.    North    H.    C.    R.    Co., 

579. 
Boosey  r.   Fairlie,   1011. 
Boosey   v.   Whight.   1013. 
Booth   r.  Alcock,  821. 
I'.ooth    r.   Garolly,   921. 
Booth    V.   Woodbury,    542. 


ARE    TO    THE    PAGES. 

Booth  &  Co.  V.  Raymond,  445,  452. 
Bootle  V.  Stanley,  1446. 
Bordentown    Road    r.    Camden    R. 

Co.,  731. 
Borland  v.  Thornton,  184. 
Borough  of  Stamford  v.   Stamford 

H.  R.  Co.,  563. 
Borron  v.  Sollibellos,  403. 
Borthwick  v.   Evening  Post,  1087. 
Bosley  v.   McKim,   24. 
Bosley    v.    Susquehanna    Canal,    3, 

7,  1455. 
Bostic    V.  Young,    143,   144,   344. 
Bostock  V.   North  Staffordshire  R. 

Co.,   779. 
Boston  i\  Nichols,  1569. 
Boston    Diatite    Co.   v.    F.    M.    Co., 

970. 
Boston  F.  Co.  v.  New  Jersey  Zinc 

Co.,  1491. 
Boston  &  L.  R.  Co.  v.  Salem  &  L. 

R.   Co.,   855,  856,   865. 
Boston   &   M.   R.    Co.   v.    Sullivan, 

662,  673. 
Boston  Water  P.   Co.  v.  Boston  & 

W.   R.   Co.,   856,   865. 
Bostwick  V.   Elton,   1406. 
Bosworth  V.  Norman,  725. 
Boucicault  v.  Chatterton,   997. 
Boucicault  'V.   Delafield,   997. 
Boucicault  r.  Fox,   1001. 
Boucicault  v.  Hart,   990,  997,   1001, 

1007. 
Boucicault  v.  Wood,  934,  993,  lOOL 
Boughner  r.  Town  of  Clarksburg, 

1291. 
Bouldin  i\  Alexander,  240,  344. 
Bouldin  r.  Mayor,  495,  511,  530. 
Bolnois  P.  Peake,  1031. 
Boultbee  v.  Stubbs,  1375,  1376, 
Boulton  r.  Bull,  900. 
Boulton  v.  Brooklyn,  500,  1324, 
Bovill   r.  Crate,  910. 
Bowdon  r.  McT^cod.  292. 
Bowen    r.  Cl-ark,   146. 


TABLE   OF  CASKS  CITED. 


XXVll 


THE    REFERENCES 

Bowen  v.  Eichel,   287. 

Bowen  v.  Mauzy,  705,  707. 

Bowen  v.  Mayor     of     Greensboro, 

1280. 
Bowers    o.    Pacific    Coast  D.    &   R. 

Co.,  895. 
Bowers    ;;.    San    Francisco    Bridge 

Co.,  901. 
Bowes  r.   Hoeg,   1213,  1542. 
Bowes  V.  Law,  1136. 
Bowie,  In  re,  273,  280. 
Bowie  V.  Smith,  1543. 
Bowles  V.  Orr,  114. 
Bowling  V.  Crook,  663. 
Bowman  v.   McGregor,  176. 
Bowser  v.  Maclea.i,  678. 
Bowyer  v.  Creigh,  185,  186. 
Boyce  v.   Woods,   162. 
Boyce's    Ex'rs   v.   Grundy,   47,   170, 

366. 
Boyd  V.  Brown,  923. 
Boyd  V.  Chesapealve,  216. 
Boyd  r.  Lofton,  328. 
Boyd  I'.  Murray,  40,  1372. 
Boyd  r.  State,  1446. 
Boyd  r.  Weaver,    144,  148,   178. 
Boyd  i\  Wiggins,  445. 
Boyd  r.  Woolwine,  848,  852. 
Boyden  r.   Bragaw,  667. 
Boyden  r.  Wall^ley,  737. 
Brackebusli   r.   Dorsett,  1482,   1589. 

1595. 
Bradbury  r.  Beeton,  939,  1073. 
Bradbury  v.  Dickens,  1358. 
Braddock    Glass    Co.    v.    Macbeth, 

923. 
Bradfield  v.  Dewell,  829. 
Bradford    r.    Peckham,    1164,    1165, 

1466,    1496.    1564,   1568. 
Bradford   r.   San   Francisco,   1236. 
Bradish   r.   Lucken,  482. 
Bradley  i\  Commissioners,  1335. 
Bradley  r.  Eccles,  885. 
Bradley   &    H.   M.    Co.   v.    Charles 

Parker  Co.,  884. 


ARE    TO    THE    PAGES. 

Bradshaw  v.  City  of  Omaha,  522. 

Bradshaw   v.  Combs,  1375. 

Bradshaw  r.  Miners'  Bank,  1381. 

Brady   v.  Johnson,  146. 

Brady  v.  Lawless,  98. 

Brady  v.  Sweetland,  1331,  1332. 

Brady   i\  Waldron,  434,  658. 

Braham  r.  Beachim,  1026. 

Braham  c.  Bustard,  1021,  1032, 1072. 

Brake  v.  Pajne,  268. 

Brammer  c.  Jones,  915,  1490. 

Bramwtll  r.  Guheen,  498,  500. 

Bramwell   v.    Halcomb,   959,   983. 

Bramwell  v.  Lacy,  1129. 

Branch  r.  Supervisors,  50. 

Branch  Turnpike  Co.  r.  Supervis- 
ors,  1552. 

Brandirff  v.  Harrison  Co.,  478,  546. 

Brandreth   v.   Lance,   966,   970. 

Brannum  v.  Ellison,  366,  367. 

Brantley  r.  Wood,  412. 

Brass  r.  Rathbone,  50. 

Brass  &  Iron  Works  Co.  v.  Payne. 
1356. 

Brauns  v.  Glesige,  4,  395,  1106. 

Brawner  v.  Franklin.  109,  389. 

Bray   v.   Fogarty,   1120.   1128. 

Bray  v.  Poillon,  1590,  1628. 

Breckinridge    i'.    McCormick,   157. 

Breeze   r.   Haley,   54,   478. 

Brem   v.  Houck,   1338,   1343. 

Brennan  v.  Emery  B.  T.  Co.,  1020, 
1022. 

Breon  v.    Strelitz,   423. 

Bresnahan  v.  Tripp  G.  L.  Co.,  897. 

Bresnehan  v.  Price,  196. 

Brevard's  Ex'rs  r.  Jones,  1384,  1386. 

Brevoort  v.  Detroit,  1264.  1440. 

Brewer  r.  Day,  1477,  1499. 

Brewer  v.  Jones,  209. 

Brewer  v.  Kidd,  1336,  1436. 

Brewer  i\  Lamar,  1157,  1161. 

Brewers'  Case,  1347. 

Brewster  r.  Stratman,  1200. 

Brice  v.  Taylor,  1368. 


XXVlll 


TABLE   OF  CASES  CITED, 


THE    REFERENCES 

Brick  V.  Burr,  36,  133,  135. 
Bridge  Company  v.  Commissioners 

of  Wyandotte  Co.,  458,  546,  547. 
Bridgers  v.  Morris,  413. 
Bridges  v.  Robinson,  1112. 
Bridson  v.  Benecke,  900,  910. 
Bridwell   v.   McNair,   1644. 
Briesch   r.   McCauley,  201. 
Briggs  V.  Wayne  Circuit  Judge,  23. 
Brigliam  r.  White,  422,  1502. 
Brill  v.  Peckham  M.  T.  Co.,  1668. 
Brill  V.  Singer  M.  Co.,  1046. 
Brinson  c.  Wessolwsky,  182. 
Briscoe  v.  Allison,  468. 
Bristol   v.   Hallyburton,   352. 
Bristol   V.   Johnson,   465,   546. 
Brittain    c.    McLain,    367. 
Britton's  Adm'r  r.  Hill,  685. 
Broadbent  r.  Imperial  Gas  Co.,  740. 
Broadnax  c.  Baker,  874. 
Brock    V.   Connecticut,   etc.,   590. 
Brock  V.  Dole,  398. 
Brockman     r.     City     of     Creston, 

1243,   1315,   1316. 
Broder  v.  Laillard,  746. 
Brodnax    v.    Groom,    517,    518. 
Bromley  v.  Holland,  83,  102. 
Bronenberg    r.    Commissioners    of 

Madison  Co.,  537,  1301. 
Brooke  ;;.  Chitty,  948. 
Brooklyn    R.    Co.    v.   Coney   Island 

R.  Co.,  868. 
Brooklyn  White  Lead  Co.  v.  Mas- 

ury,  1032,   1061. 
Brooks  V.  Bicknell,  927,  1568. 
Brooks  1'.  Curtis,  749. 
Brooks  r.  Dent,  1369. 
Brooks  V.  Montgomery,  253,  254. 
Brooks  V.  Norcross,  880. 
Brooks  V.  O'Hara,  51,  1540. 
Brooks  V.  Purton.  1560.   1572. 
Brooks  V.  Reynolds,  1404. 
Brooks  r.   Twitchell,  194. 
Broome  v.   New  York  &  N.   J.   T. 

Co.,  5,  789. 


ARE    TO    THE    PAGES. 

Brower  r.  Buxton,  415. 

Brower  c.  Kantner,  1326. 

Brown  v.  Ashley,  829. 

Brown  v.  Baldwin,  1631,  1635. 

Brown  v.  Best,  766. 

Brown  v.  Brown,  1392,  1393. 

Brown  r.  Chapman,  180,  267. 

Brown  v.  Chase,  423. 

Brown  r.  Cherry,  407. 

Brown  v.  City   of  Frankfort,  1106. 

Brown  r.  City  of  Seattle,  559. 

Brown  v.  Concord,    444,    456,    1237. 

Brown  v.  Easton,  1582. 

Brown  c.  Edsall,  1520. 

Brown  v.  Folwell,  628. 

Brown  v.  Galena  M.  &  S.  Co..  1595. 

Brown  v.  Gorton,  1621. 

Brown  v.  Herron,  444,  452,  467. 

Brown  v.  Hinkley,  881. 

Brown  v.  Jacobs     Pharmacy     Co., 

1415. 
Brown  v.  Jones,    1613,    1614,    1630, 

1636. 
Brown  v.  Keeney  Association,  1654. 
Brown  v.  Kling,  1157. 
Brown  v.  Luehrs,  136,  1551. 
Brown  v.  Manning,  813,  815,   1529. 
Brown  v.  Merrick  Co.,  1296. 
Brown  r.  Newall,  1479,  1480. 
Brown  v.  Pacific  Cable  Co.,  21. 
Brown  v.  Pacific  Company,  1527. 
Brown  v.  Pacific    Mail    Steamship 

Co.,  1231. 
Brown  v.  Parker,  271. 
Brown  v.  Prescott,  322. 
Brown  v.  Reding,  1270. 
Brown  t\  School  District,  468. 
Brown  r.  Stewart,  433,  657.  1477. 
Brown  v.  Street,  153. 
Brown  v.  Trustees  of  Catlettsburg, 

1257. 
Brown  r.  Wilson,   210,   1552. 
Brown  Chemical     Co.     v.     Meyer, 

1020.  1036. 


TABLE  OF  CA«ES  CITED. 


XXIX 


THE    REFERENCES 

Brown,    Adm'r,    v.    Thornton,    402, 

403. 
Brown's  Adm'r  v.  Tyler,  1616. 
Brown's    Appeal,    45,    1104. 
Brown's  Case,  30. 
Browne  v.  Edwards  &  McC.  L.  Co., 

1595. 
Browne  v.  Niles,   400. 
Browne  v.  Roberts,  1405. 
Brownfield  v.  Brownfield,  1611. 
Brownfield  v.  Houser,  1238,   1313. 
Browning  t>.  Camden  &  A.  R.  Co., 

602,  603. 
Browning  v.  Lavender,  351. 
Browning  t\  Porter,  1618. 
Brownlee    v.   Fenwick,   1633. 
Bruce  v.  Pittsburg,  57,  1276. 
Bruce  v.  President,  708. 
Brumley  r.  Fanning,  659. 
Brummel  v.  Hurt,  240,  344. 
Brundage  v.  Deardorf,  310. 
Brundred  i\  Paterson  Machine  Co., 

1547. 
Bruner  v.  Bryan,  1325,  1328. 
Brunnen  v.  Somborn,  1061. 
Brunnenmeyer  v.  Buhre,  305. 
Bruschke  v.  Der  Nord  Chicago  S. 

Varein,   1208. 
Brush  r.  City  of  Carbondale,  1290. 
Brush  Electric  Co.  v.  Accumulator 

Co.,  898. 
Brush     Electric     Co.     v.    Western 

Electric   Co.,   1669. 
Bryan  v.   King,   1392. 
Bryant,  In  re.  1434. 
Bryant  v.  The  People,  57. 
Brydges  v.  Stevens,  650. 
Buchanan  v.  Alwell,  366. 
Buchanan  v.  Grand  River  Co.,  762. 
Buchanan  v.  Howland,  881,  927. 
Buchanan  v.  Lorman,  243,  362,  371. 
Buchanan  v.  Marsh,  318. 
Buchanan  v.  Nolin,  228,  1102. 

Buchner  r.   Chicago,   M.    &   N.   R. 
Co..   614. 


ARE    TO    THE    PAGES. 

Buck  V.  Backarack,  51. 
Buck's  Stove  Co.  v.  Kiechle.   1025. 
Buckley  v.  Corse,  55,  1551,  1559. 
Bucknall  v.   Story,  500. 
Buckner  v.   Bierne,   1478. 
Buckstaff  V.  City  of  Oshkosh,  1532. 
Budd  /;.   Long,  344.  345. 
Buffington  v.  Harvey,  1652. 
Buford    D.    Keokuk    N.    L.    P.    Co., 

1630,  163L 
Buhlman   v.    Humphrey,    1448. 
Buie  V.  Crouch,  146. 
Bull  y.   Bodie,   387, 
Bullard  v.  Eckman,  1541. 
Bullard  v.   Harkness,   1631,  1635. 
Bullen  V.  Ovey,  1445. 
Bullion,  Beck  &  C.  M.  Co.  r.  E.  H. 

Mining  Co.,  1647,  1648. 
Bullitt's       Ex'rs       v.       Songster's 

Adm'rs,  100,  362,  370,  374. 
Bumpus  V.  Platner,  362,  370. 
Bunbury  v.  Bunbury,  113,  116. 
Bundy  v.  Summerland,  469. 
Bunker   v.    Locke,    433,    657. 
Buntain  v.  Blackburn,   152. 
Burbank   v.    Fay,    836. 
Burch  17.  Dooley,  164. 
Burch  V.  West.  148,  269. 
Burdett   v.    Hay,    1553. 
Burdon   C.   S.   R.   Co.   v.  Leverich, 

1093. 
Burge  V.  Burns,  151. 
Burgen  v.  Sharer,  1614. 
Burges  v.  Lamb,  649. 
Burgess  v.  Burgess,  1041. 
Burgess  r.  Davis,  1326,  1329. 
Burgess  v.  Hills,  1067. 
Burgess  v.  Smith,  117. 
Burgess  v.  Wheate,  23. 
Burgett  V.  Norriss,  449. 
Burham    ??.    San    Francisco    F.    M 

Co.,  1216. 

Burk  p.  Piatt,  1387. 
Burk  r.  Simonson,  766. 
Burke  r.  Cassin,  1061. 


XXX 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Burke  v.  Ellis,  62. 

Burke  v.  Pinnell,  287. 

Burke  v.  Speer,  488. 

Burke  v.  Wall,  851. 

Burleigh  Rock  Drill  Co.  v.  Lobdell, 

909. 
Buries  v.  Popplewell.  1369,  1405. 
Burlington,  C.  R.  &  N.  Ry.  Co.  v. 

Dey,   1646. 
Burlington    &    M.     R.    R.    Co.     v. 

Spearman,   501. 
Burlington   &   M.    R.    Co.    v.   York 

Co.,   468. 
Burne   v.   Madden,  1120. 
Burnes  v.  Mayor,  441. 
Burness     v.     Multnomah     County, 

1238,  1268. 
Burnet  r.   Cincinnati,  442. 
Burnett  v.  Chetwood,  971. 
Burnett  v.  Craig,  1253,  1255. 
Burnett  r.  Nicholson,  805,   1601. 
Burnett  f.  Phalon,  1033. 
Burney  v.  Ryle,  1153,  1154. 
Burnham  v.  Kempton,  762,  771. 
Burnham  v.  Rogers,  468,  534. 
Burnley  v.  Cook,  664. 
Burns  v.  Bidwell,  1387. 
Burns  v.   Mearns,   669. 
Burpee  v.  Smith,  189,  193.  1527. 
Burrel      v.      Associate      Reformed 

Church,  296. 
Burroughs  v.   Jones,  1599. 
Burroughs  v.  Saterlee,  837. 
Burrows  v.   Jamereau,   1111. 
Burrus    v.    City    of    Columbus.    50, 

617. 
Burton    r.    Duffield,    384. 
Burton  r.  Marshall,  1148. 
Burton   «.    Stratton,    1055. 
Burton  v.  Wellen,  105. 
Burton  Stock  Car  Co.   r.  Traeger, 

455,   475. 
Bnrwell   r.   rommissimers,  754. 
Bury  r.   Bedford,  1054. 
Busch    /•.    Jones,   926. 


ARE    TO    THE    PAGES. 

Busenbark  u.  Busenbark,  1390. 

Busey   v.  Hooper,  1225 

Bush  V.  Hicks,  388. 

Bush  V.  Kirkbride,  1629. 

Bush   V.  Wolfe,  1284. 

Bushby  v.  Munday,  114. 

Bushnell  v.  Robeson,  736,  757. 

Buskirk  v.  King,  9,  635,  641. 

Bustamente  v.   Stewart,  1635. 

Buster  v.   Holland,   146. 

Butch   V.   Lash,  337. 

Butchers    Benevolent    Association 

V.  Cutler,  106. 
Butchers  W.  &  S.  H.  Co.  v.  Howell. 

1599. 
Butler  V.  Burleson,  1157,  1160. 
Butler  V.  City  of  Detroit,  511. 
Butler  V.  Egge,  16. 
Butler  V.  Johnson,  1367. 
Butler  r.  Mayor,  737. 
Butler  V.  Rahm,  422. 
Butler  V.  White,  1330. 
Butman  v.  James,  642. 
Butt  D.  Colbert,  875. 
Butt    r.    Imperial   Gas  Co.,   739. 
Butt  V.  O'Neal,  220. 
Butte    &   Boston    C.    M.    Co.    v.   M, 

O.   P.    Co.,   1540,   1644. 
Butterfoss  r.  State,  736. 
Butterworth  r.  Robinson,  952,  964. 
Byam  v.  Cashman,  1599. 
Byne  v.  Byne,  1469. 
Bynum  v.  Commissioners  of  Burke 

Co.,  1260. 
Byram  r.  Detroit,  524,  525. 
Byrne  r.   Brown,   382. 
Byrne  r.  Drain,  500. 


c 


Cady  V.  Schtiltz,  1025,  1028. 
Caird  r.  Campbell.  1497. 
Cairo    &    F.    R.    Co.    v.    Titus,   133, 
136,   1581. 


TABLE   OF  CASES  CITED. 


XXXI 


THE    REFERENCES 

Cairo  &  Vincenues  R.   Co.   v.   The 

People,    594. 
Calcraft  c.   West,  859. 
Calderwood  c.  Trent,  55,  218,  1558, 

1559. 
Caldwell  r.  Cline,  1149. 
Caldwell  v.  Commercial  Warehouse 

Co.,  93. 
Caldwell   /'.    Stirewalt,    1504. 
Caldwell  i:  Vanlissengen,  887,  928. 
Calhoun  r.   McCornack,  4. 
California  Fig  Syrup  Co.  v.  Stearns 

&  Co.,  1079. 
California  Fruit  Canners'  Assn.  v. 

Myer,    1026,   1028. 
California  &  O.  Land  Co.  v.  Gowen, 

476. 
Califoi^ia  Pacific  R.  Co.  v.  Central 

Pacific    R.    Co.,    622. 
California     Syrup     of     Fig     Co.  v. 

Stearns  &  Co.,  1020. 
Calkin  v.  Manhattan  Oil  Co.,  1654. 
Callaghan   v.   Myers,  936,   937,  953, 

955. 
Callan  v.  McDaniel.  1461. 
Callanan  v.  Gilman,  785. 
Callister  v.  Kochersperger,  517. 
Calmelet  v.  Sichl,  323. 
Calvert  v.   Gason,   645. 
Calvert  v.  London,  1376. 
Calvert  v.  State,  8,  1425. 
Camden   &   A.    R.    Co.    r.    Atlantic 

City  P.  R.  Co.,  589. 
Camden   &  A.   R.    Co.    v.    Stewart, 

109,    382. 
Camden   Horse  R.   Co.    v.   Citizens 

Coach    Co.,    868. 
Cameron   r.  White,  315,  316. 
Camp   ('.  Bates,  632. 
Camp  r.  Bryan,   1618. 
Camp  t'.   Chas.   Thacher  Co.,   398. 
Camp  V.  Dixon,  688. 
Camp  V.  Matheson,  97. 
Camp  r.  Simpson,  448. 
Campbell  r.  Briggs,  136 


ARE    TO    THE    PAGES. 

Campbell  v.  Campbell,  57. 

Campbell  v.  Edwards,  208. 

Campbell  v.  Gilman,  1110. 

Campbell  v.  His  Creditors,  1488. 

Campbell  v.  Houlditch,  115. 

Campbell  v.  Metcalf,  1635. 

Campbell  v.  Morrison,  50,  1540, 
1552. 

Campbell  r.  Paris  &  D.  R.  Co., 
1299,  1300. 

Campbell  v.  Poultney,  1230. 

Campbell  v.  Scott,  963,  979,  988. 

Campbell  v.  Seaman,  742,  752. 

Campbell  v.  Tarbell,  1455. 

Campbell's    Case,    273,    278. 

Campbell  P.  &  M.  Co.  r.  Manhattan 
Ry.  Co.,  908,  912. 

Canadian  &  A.  M.  &  T.  Co.  o. 
Fitzpatrick,   1596,   1605. 

Canal    Co.    v.    Clark,    1023,    1061. 

Canal  Commissioners  r.  Village  of 
East    Peoria,    1245,    1485. 

Canal  Company  r.  Railroal  Com- 
pany, 581. 

Candee   v.   Deere,   1023,   1033,   1034, 

Candler   r.    Pettit,   317. 

Canfield    v.   Andrew,    764. 

Canfield  v.   Bayfield   County,   457. 

Cannon  r.  Barry,  653. 

Canton  r.  Northern  R.  R..  1095. 

Canton  Cotton  W.  Co.  r.  Potts,  780. 

Cantrell  v.   Cobb,  364. 

Cape  V.  Plymouth  Church,  293. 

Capehart    v.    Biggs,    412. 

Capehart  v.  Etheridge,  161. 

Capehart  v.   Mhoon,   1500. 

Cape  May  &  S.  L.  R.  Co.  r.  John- 
son,  1425,   1428,    1429,   1434. 

Caperton  r.  Landcraft,  247,  416. 

Cape  Sable  Company's  Case,  212. 

Capner  v.  Flemington  Mining  Co.^ 
1189,  1512. 

Carbon  C.  &  M.  Co.  r.  Drake,  552, 

Cardinal  v.  Eau  Claire  L.  Co.,  146, 
179,  251. 


XXXll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Cardinal  v.  Molyneux,  308. 
Cardwell   v.  American   Bridge  Co., 

796,   798. 
Carey   v.   Smith,   1560. 
Carillo    c.    Shook,   1001. 
Carlen  o.  Drury,  1353. 
Carlin    v.    Hudson,    240,    344,    345, 

1625. 
Carlin  v.  Wolff,  38. 
Carlisle   v.   South   Eastern   R.   Co., 

1214. 
Carlisle  v.  Stevenson,  678.  685. 
Carlton  v.  Newman,  546. 
Carlton  ;;.  Simonton,  1378. 
Carmel    N.   G.    &   I.   Co.    r.    Small, 

1232. 
Carmichael   v.   City  of  Texarkana, 

774. 
Carmien  v.  Cornell,  1205,  1209. 
Carnan  v.  Bowles,  961,  975. 
Carnes  v.  Heimrod,  1633. 
Games  v.   Nesbett,   1183. 
Carney  v.  Hadley,  667,  688. 
Carney   v.   Village    of    Marseilles, 

169,  172. 
Caro  V.  Pensacola  City  Co.,  341. 
Carolus  v.  Koch,  137. 
Carpenter  x\  Black  Hawk  Co.,  118. 
Carpenter   v.  Capital^  Electric  Co., 

575,   662. 
Carpenter  v.  Easton  &  A.  R.  Co., 

617. 
Carpenter  v.  Fisher,  1606. 
Carpenter  v.   Grisham,  602. 
Carpenter  v.  Talbot,  419. 
Carr  v.  Gordon,  1325,  1329. 
Carr  v.  Lee,  103. 
Carr  k.  Morice,  1553. 
Carr  /■.  Silloway,  1114. 
Carr  r.  Weld,  1509. 
Carrico  v.   Froman,   367.   368. 
Carrington  r.  Florida  R.  Co.,  1496 
Carrington    r.    Holahird.    189.    191 

287.    288. 
Carroll    r.   Campboll.   874. 


ARE    TO    THE    PAGES. 

Carroll  County  v.  Iowa  R.  L.  Co., 

1631. 
Carroll  v.  Farmers  &  M.  Bank,  72, 

117,  1569. 
Carroll  v.  Readheimer,  1619. 
Carron,  etc.  v.  Maclaren,  114. 
Carson  v.  Dunham,  121. 
Carson  v.  Ury,  1062. 
Carstaedt    v.    U.     S.     Corset    Co., 

1466. 
Carswell  v.  Macon,  85. 
Carter    v.    City    of    Chicago,    1250, 

1258,  1287. 
Carter  v.  City  of  New  Orleans,  41. 
Carter  v.  Griffin,  216. 
Carter  v.  Hallahan,  1645. 

Carter  v.  Mulrein,  1586. 
Carter  v.  Washington,  1570, 

Carthan  v.  Lang,  1241. 

Cartier  v.  Carlile,  1067. 

Cartrlght  v.  Briggs,  363. 

Cartwright     v.     Bamberger,     1401, 
1478. 

Caruthers  v.  Harnett,  1273,  1336. 

Caruthers  v.  Hartsfield,  221. 

Carver  v.  Brady,   412. 

Carver  v.  Carver,  1646. 

Cary  v.  Domestic  S.-B.  Co.,  901. 

Gary  v.  Faden,  978,  981. 

Cary    Mfg.    Co.    v.   Acme    Flexible 
Clasp  Co.,  1467. 

Cary  Mfg.  Co.  v.  Haven,  898. 

Casady   v.  Bosler,   408. 

Casamajor    v.     Strode,     636,     1522. 
1526. 

Casanave    v.    Spear,    326. 

Cascaden  v.  City  of  Waterloo,  1238. 

Casey  v.  Cincinnati  Typographical 
Union,   1410,   1412,   1415. 

Casey  v.  Independent  District,  510. 

Cass  ?'.  Demarest,  1388. 

Cassell  /'.  Scott,  217. 

Castellain    v.    Blumenthal.    1567. 

Castoriano   ;■.   Dupe,   1642. 

Caswell  r.  Davis.  1061. 


TABLE  OF  CASES  CITED. 


XXXUl 


THE    REFERENCES 

Caswell  v.  Gibbs,  1180. 

Gate  V.  Devon  &  E.  C.  N.  Co.,  968, 

974. 
Cater   v.   Northwestern   T.    E.    Co., 

574. 
Catholicon  Hot  Springs  Co.  c.  Fer- 
guson, 5,   21,  335. 
Catlett    r.    McDonald,     1488,    1540, 

1541. 
Catt  c.  Tourle,   1135,  1140. 
Gattell   V.   Loury,  538. 
Cattell  V.  Nelson,  1563. 
Caulfield  v.  Curry,  1498. 
Cecil  Natl.   Bank  o.  Thurber,  38. 
Celluloid    Mfg.    Co.,  v.    Arlington 

Mfg.  Co.,  921. 
Celluloid  Mfg.  Co.   d.  Read,  1032. 
Centaur  Co.  v.  Heinsfurter,  1045. 
Centaur  Go.  v.  Killenberger,  1047. 
Centaur    Co.     v.     Neathery,     1047, 

1072,  1644. 
Center  v.  Hoag,  1613. 
Center  Co.  v.  Black,  444,   454. 
Center  Township  v.  Hunt,  544. 
Central  B.  Co.  v.  Lowell,  856,  865. 
Central    City    H.    R.    Co.    v.    Fort 

Clark  H.  R.  Co.,  589. 
Central  Pacific  R.  Co.  v.  Corcoran, 

444.  458. 
Central  R.  Co.  v.  Collins,  1204. 
Central  R.  Co.  v.  Pennsylvania  R. 

Co.,  598,  1191. 
Central   Stock  «6:   Grain   Exchange 

V.   Board  of  Trade,   1201. 
Central  Trust  Co.  r.  Moran,  4,  5. 
Central    Union    T.    Co.     r.     State, 

1425,  1440,  1647. 
Centreville  &  Abington   T.   Co.    v. 

Barnett,  26. 
Chadbourne  v.  Zilsdorf,  573. 
Ghadoin  v.  Magee,  101,  317. 
Chadwell   v.   Jordan,   11,   72,   73. 
Chaffee  v.  Granger,  270. 
Ghaffin  r.  City  of  St.  Louis,  123. 


ARE    TO    THE    PAGES. 

Chaffraix  v.  Board  of  Liquidation, 

1241. 
Chaffraix    c.    Harper,   144. 
Chain  Belt  Co.  o.  Von  Spreckelsen, 

1154. 
Chalk  V.  Wyatt,  676. 
Challend«r  v.   Royle,  970. 
Challiss    V.   Commissioners   of   At- 
chison Co.,  444,  452. 
Challiss  r.  Davis,  876. 
Chamberlain,  Ex  parte,  484. 
Chamberlain    v.    City     of    Tampa, 

1238. 
Chamberlain  v.  Cleveland,  529. 
Chamberlain  v.   Sutherland,  54. 
Chambers    v.    Alabama    Iron    Co., 

693,  1104. 
Chambers  v.  Cannon,  155. 
Chambers  v.  Cramer,  706,  707,  754. 
Chambers    r.    King  Wrought    Iron 

Bridge  Manufactory,  222. 
Chambers    v.    Penland,    179. 
Chambers  r.  Robbins,  194. 
Chambers,    Calder   &    Co.,    In    re, 

283,  284. 
Chamblin  v.  Slichter,  72.  1527. 
Champ  V.  Kendrick,  683,  1543. 
Champion  r.  Sessions,  557,  567,  572. 
Champlin  v.  Mayor,  1188,  1293. 
Champlin   i:  Morgan,  567. 
Chance  v.  East  Texas  R.  Co.,  845. 
Chapel   V.  Hull,   1467. 
Chapin  v.  James,  253,  254. 
Chapman  r.  City  of  Rochester,  775. 
Chapman    v.    Mad    River    R.    Co., 

1207. 
Chapman   r.   Railroad   Companies, 

1207. 
Chapman  v.  Scott,  173. 
Chapman  v.  Toy  Long,  698. 
Chappell   r.   Boyd,  631. 
Chappell  r.   Cox,   142,   346. 
Chappell    r.    Davidson,    940,    1012. 

1053. 
Chappell  V.  Funk.  736. 


XXXIV 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Chappell    /■.   Purday,   978,    1015, 
Chappell    c.   Slieard,   939,   982,   984, 

1012,   1013,  1051,  1053,  1087. 
Cliarles  River  Bridge     r.    Warren 

Bridge,   858. 
Charleston   &    S.    Ry.    r.    Johnson, 

797. 
Charter  Oak  Life  Ins.  Co.  r.  Cum- 

mings,  337. 
Chase  i:  Cheney,  297,  299. 
Chase  v.  City  Treasurer,  350. 
Chase  r.  Manhardt,  207,  208,  1492. 
Chase   i:   Sanborn,  936,  953,  955. 
Chase  v.  Tuttle,  970. 
Chase  v.  Wesson,  888. 
Chattanooga  Terminal  Ry.  v.  Fel- 

ton,   4. 
Chavez  v.   McKnight.   1385. 
Cheavin     v.    Walker,     1046,     1070, 

1080. 
Chedworth  v.  Edwards,  1534. 
Cheek  r.   Taylor,  204. 
Cheesman  r.  Shreve,  693. 
Chegary  v.  Scoheld,  1657.  1659. 
Cherokee  Iron   Co.  v.   Jones,   1204, 

1206,  1221,  1222. 
Cherry  v.  City  of  Rock  Hill,  725, 

728.' 
Cherry   v.   Stein,   812.   826. 
Cherry    r.   Western   W.    I.    E.    Co., 

1576. 
Chesapeake,  0.  &  C.  Co.  v.  Young, 

13,  663. 
Chesapeake    &    Ohio    Fuel    Co.    r. 

United  States,  1186. 
Chesapeake   &    0.    R.    Co.    iK    Bob- 

bett,  610,  836. 
Chesapeake  &  O.   R.   Co.   r.   Huse, 

1542. 
Chesapeake  &  O.  R.  Co.  r.  Miller, 

1341. 
Chesapeake  &  0.  R.  Co.  i\  Patton, 

38,  610,  1577. 
Chesapeake  &  P.  T.  Co.  r.  Mayor, 

1297. 


ARE    TO    THE    PAGES. 

Chester  v.  Apperson,  213,  229, 

Chester  Traction  Co.  v.  Philadel- 
phia W.  &  B.   R.  Co.,  10. 

Chesterfield  c.  Bond,  1554. 

Chestnutwood  o.  Hood,  1299. 

Chetwood    r.    Brittan,    1474,    1502. 

Chicago    ;:.    Frary,    445. 

Chicago  &  A.  B.  Co.  v.  Pacific  M. 
T.    Co.,    1188. 

Chicago  &  A.  R.  Co.  r.  Maddox, 
556. 

Chicago  &  Atlantic  R.  Co.  v.  New 
York,  L.   E.  &  W.  R.  Co.,  595. 

Chicago,  B.  &  Q.  R.  Co.  r.  Board 
of  Commissioners,  469,  470,  476, 
477. 

Chicago,  B.  &  Q.  R.  Co.  r.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  595, 
1421. 

Chicago,  B.  &  Q.  R.  Co.  r.  Cass 
County,    441,    497. 

Chicago,  B.  &  Q.  R.  Co.  r.  City 
of  Quincy,  782,  1531. 

Chicago,  B.  &  Q.  R.  Co.  r.  Cole, 
461.    486. 

Chicago.  B.  &  Q.  R.  Co.  r.  Frary, 
444. 

Chicago,  B.  &  Q.  R.  Co.  r.  Man- 
ning, 149. 

Chicago,  B.  &  Q.  R.  Co.  r.  Nebras- 
ka City,  441,  497. 

Chicago,  B.  &  Q.  R.  Co.  v.  Ottawa, 
75,  87,  1253. 

Chicago,  B.  &  Q.  R.  Co.  /•.  Porter, 
675. 

Chicago,  B.  &  Q.  R.  Co.  r.  Siders,, 
444. 

Chicago,  B.  &  Q.  R.  Co.  r.  W.  C. 
R.  Co.,  588. 

Chicago  City  R.  Co.  r.  Howison, 
1614,  1616. 

Chicago,  D.  &  V.  R.  Co.  /-.  Field, 
232. 

Chicago  Dollar  Directory  Co.  v. 
Chicago  Directory  Co.,  979,  1664. 


TABLE  OF  CASES  CITED. 


XXXV 


THE    REFERENCES 

Chicago  Gen.  Ry.  Co.  v.  C,  B.  & 

Q.  R.  Co.,  36,  669,  725,  784. 
Chicago  Marconi  Co.  v.  Boggiano, 

1232. 
Chicago  Municipal  G.  L.  &  F.  Co. 

r.  Town  of  Lalie,  559. 
Chicago  &  N.  W.  R.  Co.  v.  Borough 

of  Fort  Howard,  482,  484. 
Chicago  &   N.   W.   R.   Co.  v.   Chi- 
cago &  P.  R.  Co.,  586. 
Chicago   &   N.   W.   R.  Co.   v.   Dey, 

596. 
Chicago  &  N.  W.  R.  Co.  r.  Forest 

County,  483. 
Chicago  &  N.  W.  R.  Co.  v.  Miller, 

479,   523. 
Chicago  Public  Stock  Exchange  v. 

McClaughry.  50,  667,  669. 
Chicago,  Rock  Island  &  P.  R.  Co. 

L\   City   of  Chicago,  43,   102. 
Chicago   Ry.   Co.    r.    Calumet   Ry. 

Co.,   1095. 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Eis- 

ert,  561. 
Chicago,    St.    P.,   M.    &   0.    R.   Co. 

V.   Becker,    596. 
Chicago  Sugar  Refining  Co.,  In  re, 

883. 
Chicago  &   S.   W.   R.  Co.   r.  Swin- 

ney,    612. 
Chickering  v.  Chickering.  1037. 
Chiara   v.  Brevoort,  23. 
Child  r.  Douglas.  1119. 
Childress   y.   Perkins,  2. 
Chinnerys,  In  re,  1539. 
Chipman  v.  Hibbard,  251. 
Chipman  r.  McKinney,  404. 
Chipman  r.  Wentworth,  913. 
Chisholm  v.  Adams,  459,  515. 
Chisholm  i\  Anthony,  208. 
Cholmondeley  r.  Clinton,  90,  1522. 
Choteau  v.  Price.  1652. 
Choynski  v.  Cohen,  1061. 
Christensen  Engineering  Co.,  In  re, 

1451,  1452,  1472. 


ARE    TO    THE    PAGES. 

Christensen    v.    Kellogg      Switch- 
board &  S.  Co.,  1410,  1413,  1419. 
Christian  v.  City  of  St.  Louis,  14. 
Christie  r.  Griffing,  1513. 
Christie  v.  Hale,  242,  349,  350. 
Christopher   v.   Mayor,   1235,    1236, 

1314. 
Christopher  &  Tenth  Street  R.  Co. 

V.  Central  C.  R.  Co.,  587,  1481. 
Chuck  V.  Cremer,  1425. 
Church  V.  Joint  School  District  No. 

12,  1291. 
Churton  r.  Douglas,  1054,  1164. 
Cicero  Lumber  Co.  v.  Cicero,  1250, 

1251,  1312. 
Cihak  r.  Klekr,  845,  846,  850. 
Cincinnati  I.  P.  R.  Co.  v.  Telephone 

Association,  576. 
Cincinnati,  L.  &  C.  R.  Co.  ;;.  Dan- 
ville &  V.  R.  Co.,  622. 
Cincinnati  S.  R.  Co.  <;.  Smith,  1251, 

1268. 
Cincinnati  Volksblatt  Co.  v.  HofE- 

meister,  1220. 
Citizens  Bank  of  Louisiana  r.  Du- 

buclet,  1344. 
Citizens     Coach     Co.     v.     Camden 

Horse  R.  Co.,  13,  36,  588,  1546. 
Citizens  G.  L.  Co.  v.  Louisville  G. 

Co.,  864. 
Citizens  G.   &  M.  Co.  v.  Town  of 

Elwood,  573. 
City  Bank  r.  Crossland,  1406. 
City  Bank  v.  Skelton,  127. 
City  Council  v.  Sayre,  441,  468. 
City    Council    of    Montgomery,   Ex 

parte.  23. 
City    Council    of    Montgomery    v. 

Lemle,  1292. 
City    Council    of    Montgomery    «. 

Louisville  &  N.  R.  Co.,  867. 
City  Loan  &  Building  Association 

r.  Goodrich,  1213. 
City  of  Alma  v.  Loehr,  38. 
City  of  Alpena  r.  Kelley,  23. 


XXXVl 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

City  of  Anthony  v.  State,  549. 
City  of  Atlanta  v.   Gate  C.  G.   L. 

Co.,  87,  88,  1297. 
City  of  Atlanta  o.  Grant,  1215. 
City  of  Atlanta  r.  Holliday,  559. 
City  of  Atlanta  c.  Stein,  1237,  1268, 

1269. 
City  of  Atlanta  v.  Warnock,  738. 
City  of  Austin  v.  Austin  City  Ceme- 
tery Association,  1256. 
City    of    Austin    v.    McCall,    1268, 

1269. 
City  of  Bainbridge  v.  Reynolds,  87, 

1253. 
City  of  Carlsbad  v.  Kutnow,  1026. 

1027. 
City   of  Carlsbad  v.  Thackeray   & 

Co.,  1026,  1078. 
City  of  Chicago  v.  Collins,  19,  79. 
City  of  Chicago  r.  Frary,  445. 
City    of    Chicago    v.    Galpin,    1268, 

1276. 
City    of    Chicago    r.  McCoy,    1237, 

1238,  1268. 
City  of  Chicago  v.  McDonald,  1268, 

1276. 
City   of   Chicago   v.   Nichols,    1237, 

1238,  1314. 
City  of  Chicago  v.  Union  Building 

Association,    570,    720,    725     785, 

1287,  1312,  1316. 
City  of  Chicago  i:  Ward,  814. 
City  of  Chicago  r.  Wright,  1294. 
City  of  Cleburne  v.  Gulf  C.  &  S.  F. 

R.  Co.,  1385. 
City  of  Cleveland  r.  Cleveland  City 

R.  Co.,  1250,  1251. 
City  of  Coldvi^ater  r.  Tucker,  772. 
City  of  Council   Bluffs   r.  Stewart, 

43. 
City  of  Delphi   r.  Bowen,  444,  452, 

467. 
City  of  Delphi  r.  Startzman.  1266. 
City  of  Demopolis  r.  Webb.  782. 
City  of  Denver  r.  Beede,  1253. 


ARE    TO    THE    PAGES. 

City  of  Detroit  r.  Hosmer.  23. 
City  of  Detroit  r.  Wayne    Circuit 

Judge,    482,    484. 
City  of  Eau  Claire  v.  Matzke,  781, 

782. 
City  of  Emporia  v.  Bates,  491. 
City  of  Emporia  v.  Soden,  831. 
City  of  Evansville  v.  Pfisterer,  527. 
City  of  Fort  Wayne  v.  ShoafE,  530. 
City  of  Fort  Worth  r.  Davis,  510. 
City   of  Grand   Rapids  r.   Wieden, 

736. 
City  of  Hutchinson  r.  Beckman,  88. 
City  of  Hutchinson  r.  Delano,  775. 
City   of  Kansas   r.  Kansas  Pacific 

R.  Co.,  556. 
City  of  Kewanee  v.  Otley.  704,  774, 
City  of  Kokomo  v.  Mahan,  1286 
City  of  Laredo  r.  Martin,  874. 
City  of  Lawerence  v.  Killam,  444, 

453,  468.  469. 
City  of  Logansport  v.  Carroll,  491, 

493. 
City    of    Logansport  v.  La    Rose, 

522. 
City  of  Logansport  v.  Seybold,  522. 
Citf  of  Logansport  r.  Uhl,  844. 
City    of   London    Brewery    Co.    v. 

Tennant,  820. 
City  of  Macon  r.  Georgia  Packing 

Co..  1663. 
City    of    Madison    v.    Smith,    1300, 

1307. 
City   of  Menasha   r.   Milwaukee   & 

N.    R.    Co.,    598. 
City  of  Meridian  r.  Ragsdale,  469. 
City  of  Mobile  r.  Bienville  W.   S. 

Co.,    1283. 
City    of    Mount   Vernon   r.    Hovey, 

539. 
City  of  Mt.  Carmel  v.  Shaw,  1245. 
City  of  New  Albany  r.  White,  552. 
City  of  New  Castle  r.  Raney,  702. 
City  of  New  Orleans  r.  Becker, 
1249,   1250. 


TABLE  OF  CASi:s  CITED. 


XXXVU 


THE    REFERENCES 

City     of    New     Orleans     r.     Great 

Southern    T.    Co.,    1C44. 
City    of    New    Orleans    '".    Ruleff, 

161. 
City    of    New    Orleans    r.    Smith, 

161. 
City    of    Newport    r.    Newport    L. 

Co.,    864. 
City  of  Newton   r.  Levis,  20. 
City    of    Oshkosh    f'.    M.    &    L.    W. 

R.  Co.,  781,  786. 
City  of  Ottawa  r.  Barney,  468. 
City  of  Peoria  v.  Johnston,  1290. 
City  of  Peru  v.  Bearss,  522,  1266. 
City  of  Philadelphia's  Appeal,  788. 
City  of   Portland    i'.   Oregonian   R. 

Co.,   580. 
City    of    Quincy    r.    Bull,    1297. 
City  of  Red  Wing  r.  Guptil,  1531. 
City    of    Richmond    /•.    Crenshaw, 

514. 
City  of  Richmond   r.   Davis,  1286. 
City   of   Richmond    r.    Smith,   790. 
City  of  Rushville   r.   Rushville   N. 

G.    Co.,    1256. 
City    of    Seymour    r.    J.,    M.    &    I. 

R.   Co.,   100,   102. 
City    of    Shreveport    /•.    Flournoy, 

177. 
City    of    Springfield     r.    Edwards, 

511,  512,  1276,   1313,   1315. 
City    of    Staunton    v.    Mary    Bald- 
win   Seminary,    504. 
City  of   St.   Louis   r.   St.   Louis  G. 

Co.,   1607. 
City   of   St.    Louis    r.    The   Knapp, 

Stout   &   Co.    Company.    797. 
City  of  Taunton  v.  Taylor,  750. 
City  of  Terre  Haute  /■.  Mack,  530. 
City     of     Valparaiso     r.     Gardner, 

1277. 
City  of  Valparaiso   r.   Hagen,   776. 
Civil    Service    Supply    Association 

V.  Dean,  1070. 
Clack    c.   White,   847. 


ARE    TO    THE    PAGES. 

Clad   r.   Paist,   49,  50. 

Clagett  r.  Salmon,  424,  659. 

Clagon   c.   Veasey,   653. 

Clancy   ;;.   Roberts,  383. 

Clapham    v.    White,    1511. 

Clark,    In    re,    281. 

Clark  ly.  Bond,  174. 

Clark  V.  Borough    of    Washington, 

57. 
Clark  v.  C.  &.  A.  I.  &  L  Co.,  12. 
Clark  V.  City   of  Providence,  1295. 
Clark  i\  Clark,  820,  1032. 
Clark  V.  Cort,  105. 
Clark  V.  Dayton,  1275. 
Clark  V.  Ewing,  213. 
Clark  V.  Ferguson,  908. 
Clark  r.  Freeman,  968. 
Clark  V.  Henty,  159,  1375. 
Clark  V.  Herring,  1653. 
Clark  V.  Jeffersonville  R.  Co.,  662, 
Clark  V.  Lawrence,  757. 
Clark  r.  Martin,  1136,  1137. 
Clark  i).  Mayor,  803. 
Clark  r.  Town  of  Noblesville,  1492. 
Clark  V.  Village  of  Dunkirk,  513. 
Clark  V.  Wood,  1445. 
Clark  V.  W^ooster,  924,  926. 
Clark  (;.  Young,  56. 
Clark's   Appeal,   684. 
Clark    and    Bininger,    In    re,    281, 

282. 
Clark  Thread    Co.    r.    Wm.    Clark 

Co.,    1085. 
Clarke,  Ex  parte.  72,  110. 
Clarke  r.  Clarke,  112,  340. 
Clarke  v.  Freeman,  1076,  1082. 
Clarke  v.  Ganz,   441,  482. 
Clarke  r.  Hardgrove,  361.  362.  370. 

371. 
Clarke  r.  Henty.  159,  1375. 
Clarke  r.  Hoome's  Ex'rs,  155,  1439. 
Clarke  (-.  Price.  1147. 
Clavering    r.    Clavering,    655. 


xxxvm 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Clawson    r.    Primrose,    826,    827. 
Clayton    r.    Attorney-General,    9. 
Clayton   r.   Lafargue,   454. 
Clayton  r.   Lyle,   1501. 
Clayton   r.   Martin,   1589. 
Clayton   f.    Shoemaker,   666. 
Claytor   v.   Anthony,   1618,   1621. 
Clegg  r.   Darragh,  1382. 
Clegg   r.   Jones,   695. 
Cleghorn   c.  Postlewaite,  474. 
Clement    r.    Maddick,    1071,    1085, 

1086. 
Clement    r.    Wheeler,    648,    649. 
Clements   r.   Welles,  1127. 
Clerk  i:  Watkins,  1178. 
Cleveland    r.    Citizens    G.    L.    Co., 

735,  740. 
Cleveland    F.    A.    T.    Co.    r.    Board 

of    Fire    Commissioners,    1264. 
Cleveland    Stone    Co.    v.    Wallace, 

1078. 
Click   c.   Stewart,   142. 
Clifton  V.  Robinson,  1480. 
Clifton    Iron   Co.    r.    Dye,   703. 
Cliland    r.    Hedly,  94. 
Clinch    V.    Ferril,    347. 
Clinton,  etc.,  Appeal,   444,  447,  459. 
Clopton    r.    Carloss,    216,    217. 
Clotworthy    v.    Schepp,    1079. 
Clowes    r.    Staffordshire    Co.,    763. 
Clum     r.    Brewer,    900,    914,    91G, 

922. 
Clute   r.    Potter,    169. 
Coale    /■.    Chase,    1501. 
Coalter    c.    Hunter,   765,   766. 
Coast   Line   R.    Co.    r.   Cohen,   725, 

728,  794. 
Coates   r.   Caldwell,    1609,    1620. 
Coates    V.    Coates,    1629. 
Coats  r.  Clarence  R.  Co.,  582. 
Coat.s    r.    Holbrook,    1035,    1089. 
Coa(s worth    i).    Lehigh    V.    R.    Co., 

062. 
Cobb    (.    Illinois   &    St.    L.    R.    Co., 
602.   605. 


ARE    TO    THE    PAGES. 

Cobb  V.   Hynes,   147. 
Cobb  v.-  Smith,  765,  807. 
Cobbett  V.  Woodward,  974. 
Coburn    r.    New    T.    Co.,    575. 
Cochrane    v.    O'Brien,    71. 
Cockey   v.   Carroll,   627. 
Cocks    v.    Chandler,    1045. 
Coe   r.    Columbus,    P.   &   I.   R.   Co., 

43. 
Coe  V.  Jobnson,  337. 
Coe   r.  Knox,   430. 
Coe  r.  Knox  County  Bank,  158. 
Coe    r.    Louisville    &    N.    R.    Co., 

596. 
Coe  V.  New  Jersey  M.  R.  Co.,  580. 
Coe    V.    Pennock,    592. 
Coe     r.    Winnipiseogee     Co.,     761. 

762. 
Coeur  d'  Alene  C.  M.  Co.  r.  Min- 
ers'  Union.  33,  1410,  1412,  1413, 

1419. 
Coffeen     r.     Brunton,     1033,    1071, 

1085. 
Coffeen    r.    Chicago,    M.    &    St.    P. 

R.    Co.,    566. 
Coffey  r.  Gamble,  1430,  1481. 
Coffin   r.    Coffin,   629,   649. 
Coffin    r.    Richards,    1279. 
Coffman   r.    Castner,   1023,    1668. 
Cogburn    v.    Pollock,    152,    1402. 
Coggill  r.  Millburn  Land  Co.,  657. 
Cogswell    V.    New    York,    N.    H.    & 

H.    R.    Co.,    743. 
Cogwill    V.    Long,    490. 
Cohen  r.  Commissioners  of  Golds- 

boro,    1253,    1254. 
Cohen   v.   Gray,   1286. 
Cohen  v.  L'Engle,  1659. 
Cohen   v.    Meyers,    1397,    1653. 
Cohen   v.   Morris,    1406. 
Cohen    r.    Wilkinson,    1204,    1206, 

1221. 
Cohn  -v.   Lehman,   1596. 
Cohn  V.  Wausau  Boom  Co.,  860. 
Coit  r.   Freed,   1443. 


TABLE  OF  CASES  CITED. 


XXXIX 


THE    REFERENCES 

Coit  V.   Horn,   669. 

Coker  v.   Birge,   736,   755. 

Coker    v.    Monaghan    Mills,    127. 

Coker   v.    Simpson,    685. 

Coker   r.   Whitlock,   437. 

Colburn   v.    Buncombe,    1015. 

Colby    i\    Brown,    357. 

Colby    V.    Meservey,    1634. 

Colcord  V.   Sylvester,   1603. 

Cole    r.    Cunningham,    117. 

€ole   V.    Duke,    38. 

Cole  V  Edwards,   1160,   1163,  1168. 

Cole  V.  Sands,  1483. 

■Cole    Co.    V.    Virginia    Co.,    5,    699, 

1507,    1536,    1561. 
Coleman   v.   Dannenberg,    1079. 
Coleman  v.  Gage,  1514,  1515. 
Coleman   v.    Glenn,    1325. 
Coleman    v.    Hudson,    1481. 
Coleman    r.   Hudspeth,    1506,   1507. 
Coler  V.  Board  of  Commissioners, 

47. 
Coles  V.   Sims,  1138. 
Colgan   V.   Danheiser,   1020. 
Colladay     v.    Baird,     1035. 
College    C.    &   R.    G.    Co.    v.    Moss, 

1545.  * 

Colley    V.    Duncan,    402,    403. 
Collier  v.  Bank  of  Newbern,  1570. 
Collier    v.    Easton,    192. 
Collier    v.    Sapp,    1645. 
Collings   V.   City  of  Camden,  1277. 
Collins  V.  Castle,  1136. 
Collins  V.   City  of  Keokuk,   455. 
Collins  V.   Clayton,   363,   379. 
Collins    V.   Fraiser,   159. 
Collins  r.  Green,  468. 
Collins  r.  Plumb,  1096. 
Collins     r.     Sinclair,      1613,      1614, 

1629,    1636. 
Collins  V.  Sutton,  661,  667. 
Collins   Co.   r.   Brown,   1089. 
Collins    Co.    V.    Cowen,    1089. 
Collinsplatt    r.     Finlayson,     1026, 

1028,    1032. 


ARE    TO    THE    PAGES. 

Colliton   V.   Oxborough,   662. 

Colman  r.  Eastern  Counties  11. 
Co.,    1204,    1221,    1222. 

Colson    V.    Leitch,    225. 

Coltart   V.   Ham,    1609. 

Colton    V.     Hanchett,     1237,     1241. 

Colton   r.    Price,    1325,    1330,    1516. 

Columbia  Mill  Co.  v.  Alcorn, 
1023,    1074. 

Columbia  National  S.  D.  Co.  v. 
Miller,    970. 

Columbia  Water  Power  Co.  v.  Co- 
lumbia,   1429,    1430,    1463,    1470. 

Columbia  Wire  Co.  v.  Boyce,  1663. 

Columbia  Wire  Co.  v.  Freeman 
Wire    Co.,    882. 

Columbian  Athletic  Club  r.  State, 
.  33,    710,    717,    731. 

Columbus.  H.  W.  &  T.  Ry.  Co. 
r.    Burke,    1597,    1598. 

Columbus  Watch  Co.  v.  Robbins, 
1668,   1670. 

Columbus  &  W^estern  R.  Co.  v. 
Witherow,    616. 

Colwell    r.    Smith,    343. 

Commercial    Bank   v.   Cabell,    106. 

Commercial  Bank  r.  Waters,  1427, 
1471. 

Commercial  Soap  Works  v.  Lam- 
bert, 120. 

Commercial  Union  Assurance  Co. 
i\   Scammon,   183,   217. 

Commercial  Wharf  Co.  v.  Winsor, 
851. 

Commissioners     {•.     Durham,     552, 

553,    602. 
Commissioners   r.    Hinchman,   539, 

541. 

Commissioners     r.     Patrick,      169, 

174. 
Commissioners    of    Benton    Co.    v. 

Templeton,    1261,    1263. 
Commissioners    of    Clay     Co.     v. 

Markle,   1273,    1534,    1543. 


xl 


TABLE   OF  CASKS   CITED. 


THE    REFERENCES 

Commissioners    of     Delaware     Co. 

V.    MeClintock,    1299,    1300. 
Commissioners     of      Highway      r. 

Green,    667. 
Commissioners   of   Johnson    Co.    v. 

Ogg,   493. 
Commissioners     of     Kingstown    r. 

Blaclvrock     Commissioners,    789. 
Commissioners      of      Leavenworth 

Co.    V.   Lang,   464. 
Commissioners   of   Osborne   Co.    v. 

Blake,    471. 
Commonwealth   v.  Banks,  1057. 
Commonwealth    v.   Croushore,   723. 
Commonwealth    r.    Pittsburg   &   C. 

R.   Co.,   12,   590. 
Commonwealth   r.   Wellsboro  &  T. 

P.    R.    Co.,    571. 
Company    of     Stationers    v.     Sey- 
mour,   953. 
Computing   Scale   Co.    v.   National 

C.    S.    Co.,    891,   892,   970. 
Computing   Scale  Co.   v.   Standard 

S.    C.    Co.,    1020,    1022. 
Comstock   V.  Johnson,  835. 
Condit    /;.    Widmayer,    479,    490. 
Condon  v.  Maloney,  4. 
Congleton    i:    Mitchell,    630. 
Congress    Co.    r.    High    Rock    Co., 

1060,   1089. 
Conkey   v.   Dike,   349,   409,   427. 
Conkey  Co.   r.  Russell,  1422,  1423. 
Conley  v.   Chedic,   483. 
Conley    r.    Fleming,   17. 
Connel    v.    Stelson,    220,    221. 
Connell   r.   Reed,  1079. 
Conner's   Appeal,    478. 
Connery   v.    Swift,    226. 
Connor    /;.    Connor,    1372. 
Conolly    /;.    Riley.    1404. 
Conover  r.  Mayor,  66. 
Conover    r.    Mers,    896,    897. 
Conover    r.    Rurkman,    1401,    1490, 

1  .'■.03. 
Conrad    r.   Smith,  1287,   1289. 


ARE    TO    THE    PAGES. 

Consolidated  Coal  Co.  v.  Schmis- 
seur,    1123,    1137. 

Consolidated  E.  S.  Co.  v.  Accumu- 
lator  Co.,   1668. 

Consolidated  Fastener  Co.  r. 
American   Fastener  Co.,   888. 

Consolidated  Fastener  Co.  v.  Lit- 
tauer,    899. 

Consolidated  P.  C.  Co.  v.  Pacific 
Ry.   Co.,   1670. 

Consolidated  R.  M.  Co.  v.  Rich- 
mond   C.    M.    Works,    882. 

Consolidated  R.-M.  Co.  v.  Smith 
M.    P.    Co.,   902. 

Consolidated  S.  &  W.  Co.  v.  Mur- 
ray,   33,    1410,    1413,    1419. 

Consolidated  Water  Co.  r.  City 
of   San   Diego,   1526. 

Consumers  Gas  Co.  v.  K.  C.  G.  & 
C.   Co.,   970. 

Consumers  Oil  Co.  v.  Nunne- 
maker,    1162. 

Continental  Ins.  Co.  v.  Conti- 
nental   Fire    Assn.,    1023. 

Continental  S.  S.  Co.  v.  Clark, 
879. 

Converse    r.    Ketchum,    394. 

Conway,  Ex  parte,  21,  23,  335,  336. 

Conway    r.    Ellison,    73,    135,    25t. 

Cook    /•.    Burnley.   315. 

Cook  /-.  Chapman,  1603,  1617, 
1629. 

Cook  V.  City  of  Beatrice,  1301. 

Cook  r.  City  of  Racine,  532. 

Cook  /•.  Ernest,  888. 

Cook  r.  Forbes,  739. 

Cook  r.  Jenkins,  1474. 

Cook  V.  Mayor,  726.  852. 

Cook  V.  Murphey,  232. 

Cook  r.  North  &  South  R.  Co., 
618. 

Cook  r.  Patterson.  412. 

Cook  &  Bernheimer  Co.  r.  Ross, 
1048. 

Cooke    r.    Burnham,    220,    221. 


TABLE  OF  CASES  CITED. 


Xli 


THE    REFERENCES 

Cooke    r.    Chilcott,    5,    1140. 

Cooke  &  Cobb  Co.  v.  Miller,  1020. 

Coombs  V.  S.  L.  &  F.  D.  Co.,  16, 
621. 

Cooper,  In  re,  273. 

Cooper  V.  Alden,  1293. 

Cooper  V.  City  of  Mineral  Point, 
58. 

Cooper  V.   Cooper,  1488. 

Cooper  r.   Crabtree,   739. 

Cooper   V.    Davis,   434,   658. 

Cooper   r.    Detroit,   570. 

Cooper  V.   Gordon,  303,  304. 

Cooper  V.  Hamilton,  666. 

Cooper   V.   Williams,    1190. 

Coosaw  Mining  Co.  v.  Carolina 
Mining   Co.,   1602. 

Coosaw  Mining  Co.  r.  Farmers' 
Mining   Co.,    1607, 

Coosaw  Mining  Co.  v.  South  Caro- 
lina, 697. 

Cope  i\  District  Fair  Association, 
29. 

Cope  r.  Evans,  1070. 

Copeland's  Adm'r  c.  Reese,  157. 

r.  Copley,  649. 

Coppinger    r.   Gubbins,   634,   645. 

Coquard  r.  Indian  Grave  Drain- 
age District,  44. 

Coquard  v.  National  Linseed  Oil 
Co.,   1207,   1214,   1224. 

Corbin  v.  Gould,  1022. 

Corby  v.  C,  R.  I.  &  P.  R.  Co., 
793. 

Corcoran  r.  C,  M.  &  N,  R.  Co., 
616. 

Corcoran    v.    Doll,    320. 

Corcoran  r.  Judson,  1629. 

Corder    o.    Martin,    1587. 

Core  V.   Bell,    643. 

Corey    v.   Voorhies,   1475,   1490. 

Corles    r.    Lashley,    423. 

Corliss    V.   Walker   Co.,   34,    35. 

Cornelius   v.   Coons,   1653. 

Cornelius  r.  Morrow,  185. 


ARE    TO    THE    PAGES. 

Cornelius    r.    Post,    646,    688. 
Cornelius  r.  Thomas,  185. 
Corning  v.  Lowerre,  725,  782,  78i;. 

1532. 
Corning    o.    Troy    Factory,    4,    761, 

762,   768. 
Correspondent    Newspaper    Co.    v. 

Saunders,    938,    982. 
Corwin  ;;.  Daly,  1020,  1061. 
Cory    V.    Yarmouth    &    N.    R.    Co., 

20,    871,    873. 
Coster   r.   Griswold,    127. 
Cotter   r.   Cotter,   1653. 
Cotton   i\  Hiller,   140. 
Cotton  V.  Mississippi   &   R.   R.   B. 

Co.,  778. 
Cottrell    ('.    Moody,    1397,    1398. 
Cotzhausen   /■.   Kerting,   139. 
Couch     r.     Ulster     Turnpike     Co., 

1498. 
Coughron    o.    Swift,    43,    240,    242, 

344. 
Coulson    ('.    Harris,    442,    444,    453, 

457. 
Coulson  i.\  Portland,  516. 
Coulson    r.    White,    703. 
Counterman    r.    Dublin    Township. 

1299. 
County   Commissioners  r.    Bryson. 

182. 
County    Commissioners    r.    Frank- 
lin Coal  Co.,  17. 
County     Commissioners     r.     Hum- 
phrey, 877. 
County    Commissioners     r.     Hunt, 

1282. 
County    Commissioners     r.    Union 

Mining    Co.,    463,    468. 
County   of    Anderson    r.    Kennedy. 

504. 
County    of    Cook    r.    City    of    Chi 

cago,    100. 
County  of  Cook  /•.  Great  Western 

R.  Co..  583,  594. 
County   of   Harris   a   Taylor,   814. 


:xlii 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


County  of  Stearns  r.  St.  Cloud, 
594. 

Couper  r.   Rowe,  511. 

Couper    i-.    Smyth,    1325,    1330. 

Court    r.   O'Connor,   461,   497. 

Cousins    r.    Smith,    1554. 

■Covert  r.  Travers  Bros.  Co.,  909, 
924,    926. 

Coville   r.   Oilman,   75. 

Covington  r.  Town  of  Rocking- 
ham,   448,    468. 

Cowand   v.    Meyers,   653. 

Cowell    r.    Martin,    777. 

Cowles    V.    Shaw,    688. 

Cowley    r.    City    of    Spokane,    531. 

■Cowley  V.  Northern  Pacific  R. 
Co.,    180. 

Cowley   r.  Wellesley,   643. 

Cowper  V.  Clerk,  77. 

Cowper  r.   Laidler,  817. 

Cox  V.  Arnsmann,  1386. 

€ox  V.  Douglass,  687. 

€ox  r.  Hawkins,  463,  472. 

Cox  V.  Howell,  833. 

Cox  V.  Land  &  Water  Journal  Co., 
974. 

Cox  /•.  Louisville  R.   Co.,   615. 

Cox   V.   Moores,   1326. 

Cox  r.  Taylor's  Adm'r,  1593. 

Coxe  Bros.  &  Co.  v.  Solomon,  460. 

Coyne  v.  Warrior  S.  Ry.,  602,  604. 

Cozart  r.  Oeorgia  Railroad  & 
Banking    Co.,    1226. 

Crabtree    r.    Baker,    715. 

Crabtree    v.    Oobson,    1262. 

Craft  r.    Bullard,    413. 

Craft   V.   I..   D.   &  W.   R.   Co.,   350. 

Craft    r.   Jackson,   1313. 

Craft    r.    Kochersperger,    352,    517. 

Craft    r.    Thompson,    265. 

Craig  r.   Ankeney,  136,   1382. 

Craig  r.   Fisher,   1437. 

Craig   r.   Greer,   1143. 

Craig  r.  The  People,  780,  1573. 

Crampton  /■.  Zabri.skie,  1238,  1277. 


Crandall    r.   Bacon,   148,   220,   221. 
Crane  iK  Bunnell,  66. 
Crane    r.    Janesville,    498,    499. 
Cranford  v.  Tyrrell,  34,  710,  749. 
Cranmer  r.  Williamson,  456. 
Cranstown    v.    Johnston,    113,    259. 
Crawford    r.    Bradford,    466. 
Crawford     r.    Crawford,    192. 
Crawford    r.    Fisher,    70. 
Crawford  r.  Paine,    111,    317,    1558, 

1577. 
Crawford    r.    Pearson,    1594,    1595, 

1607. 
Crawford    v.   Thurmond,    185,   186. 
Crawford     r.     Woodworth,      1609. 

1619. 
Crawfordsville    &     E.     T.     Co.     v. 

Smith,    858. 
Craycroft    r.    Morehead,    1513. 
Creanor   v.    Nelson,    557. 
Creek    r.    McManus,    1634. 
Cregan    v.    Cullen,    634. 
Cregar   r.   Creamer,   1502. 
Crellin    v.    Ely,    391. 
Cresap    r.    Kemble,    665,    669. 
Crescent     City     Co.     v.     Larrieux, 

1609. 
Crescent    City    L.    S.    L.    &    S.    H. 

Co.   V.   Police  Jury,  48. 
Crescent  City  S.  H.  Co.   r.  Butch- 
ers   W.    S.    Co.,    1552. 
Crescent  City   S.   H.   Co.   r.   Police 

Jury,    1552. 
Crescent     City    W.     &    L.     Co.     /•. 

Simpson,   673. 
Crescent     Mining     Co.     i\     Silver 

King  Mining  Co.,   20. 
Cresy    r.    Beavan,    1480. 
Crews  /;.  Burcham,  19. 
Crews  v.   Pendleton,  246,  424 
Crighton  r.  Dahmer,   86. 
Crim  r.   Handley,   138,   205,   206. 
Crim  r.  Town  of  Philippi,  497. 
Crist    r.   Cosby.   180.   267. 


TABLE  OF  CASES  CITED. 


xliii 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Crocker   v.  Allen,   179. 
Crocker  v.  Baker,  1540. 
Crocker  v.  City  of  New  York,  722. 
Crockett    r.    Crockett,    630,    639. 
Crockford   v.  Alexander,  1354. 
Croft    V.     Day,     1033,     1035,     1037, 

1050,   1067. 
Crombie    v.   Order   of    Solon,   1499. 
Cronise   v.   Clark,   1477. 
Crook   V.   The    People,    1460,    1466, 

1470. 
Crook's   Ex'r   i:  Turpin,   1489. 
Cropper   v.   Coburn,   256,   1346. 
Crosble   r.   Tooke,   1104. 
Cross    V.   Livermore,    883. 
Cross   V.   Mayor,   560. 
Crossley    v.    Beverley,    924. 
Croton    Turnpike     Co.     r.     Ryder, 

857,   858. 
Crowe     V.    Aiken,    990,    991,    993, 

994,   996,   999,   1014. 
Crowell   V.   Horacek,   1397. 
Crowley    v.    Davis,    251,    563. 
Cruickshank    v.    Bidwell,    1345. 
Crump  V.  Lambert,  736. 
Cruttwell   r.   Lye,   1164. 
Cubbedge   r.   Adams,   1399,  1644. 
Cuervo    r.    Landaner,    1078.    1079. 
Culbertson  r.  City  of  Fulton,  512. 
Culbertson    r.    Culbertson,    442. 
Cumberland    Co.    r.    Hoffman    Co., 

1577,    1602,    1626. 
Cumberland   Glass   Mfg.    Co.   r.   G. 
B.  B.  Assn.,  33,  1410,  1412,  1414. 
1419. 
Cumberland  &  O.  R.  Co.,  v.  Judge 
of    Washington     County     Court, 
1334. 
Cumberland  T.  &  T.  Co.  v.  United 

Electric   R.    Co.,    576. 
Cumines  i\  Supervisors,  541,  1305. 
Cummings  r.  Burleson,  1623,  1629. 
Cummings    v.    City    of    St.    Louis, 
813,  1529. 


Cummings    r.    Des    Moines,    W.    & 

S.   W.   R.   Co.,   59. 
Cummings   c.   Jerman,   1379. 
Cummings    v.    Mugge,    1579,    1585, 

1616. 
Cummings  v.  National  Bank,   486. 

487. 
Cummins   v.   Bennett,   54. 
Cummins     v.     Bentley,     232,     233, 

1110. 
Cummins  v.   Cummings,   1570. 
Cunningham  v.  Bell,  1388. 
Cunningham  r.  Caldwell,  212. 
Cunningham  r.  Conway,  145. 
Cunningham  r.  Finch,  1631,  1635. 
Cunningham  r.  Rice,  755. 
Cunningham  r.  Rome  R.  Co.,  755. 
Cunningham  v.  Tucker,  1513. 
Curd   i-.  Farrar,  248. 
Curd  c.  Wallace,  297. 
Curd  V.  Wunder,  425. 
Curran    v.    Shattuck,   557. 
Currier    v.    Esty,    200. 
Currier   r.  West  R.  Co.,   793. 
Curriers  Company  i\  Corbett,  823. 
Curry    r.    Jones,    530. 
Curtenius    r.    Hoyt,    1299,    1301. 
Curtis    r.    East    Saginaw,    500. 
Curtis    r.    Keesler,    761. 
Curtis     r.     Marquis     of     Bucking- 
ham,   1104. 
Curtis  r.  Norton,  831. 
Curtiss  V.  Bachman,  1633,  1635. 
Cutting   r.   Gilbert,  489. 

D 

Dade  r.  Irwin's  Ex'r,  233. 
Daggett  V.  Ryman,  1170. 
Daily  v.  Wynn,  227. 
Dale  V.  Roosevelt,  64,  1094. 
Dales  r.  Webster,  1179. 
Dalglish  r.  Jarvie,  1479. 
D'Almaine  r.  Boosey,  963,  1009. 
Daly  V.  Amberg,  1449.  1450. 


xliv 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Daly  i:  Brady,  940. 

Daly  v.  Palmer,  1004. 

Daly  V.  Smith,  1149,  1150,  1153. 

Daly  r.  The  Sheriff,  256. 

Daly  V.  Webster,  1004. 

Damschroeder  v.  Thias,  112,  395. 

Dana  r.  Craddock,  14. 

Dana  v.  Valentine,  701,  751,  754. 

Dance  v.  Goklingham,  39. 

Daniel  v.  Daniel..  1607. 

Daniel  v.  Ferguson,  10. 

Danville  v.  Montpelier  R.  Co.,  1307. 

Danville  B.  &  T.  Co.  i:.  Parks,  1612. 

Darling  v.  Gunn,  463. 

Darling  r.  Mayor,  135. 

Darlington  Oil  Co.  r.  P.  D.  Oil  Co., 
1653. 

Darmsdatt  r.  Wolfe,  95. 

Darst  V.  Brockway,  1108,  1109. 

Darst  r.  Gale,  1612. 

Darst  0.  Griffin,  524. 

Darst  v.  The  People,  1304,  1435. 

Dascey  v.  Harris,  402,  403. 

Daubenspeck  r.  Grear,  690. 

Dauenhauer  v.  Devine,  323. 

Daugherty  T.  Co.  r.  Kittanning  1. 
&  S.  Co..  20,  1548. 

Daughtry  r.  Warren,  707. 

Davenport  r.  Davenport,  1556. 

Davenport  r.  .Jepson,  908. 

Davenport  r.  Kleineschmidt,  1236, 
1276.  1313. 

Davenport  Bridge  R.  Co.  r.  .John- 
son, 613. 

Davidson  r.  Floyd,  182. 

Davidson  v.  Reed,  675. 

Davies  v.  Clough,   26,  90. 

Davies  v.  Leo,  626. 

Davies  v.  Williams,  766. 

Davis  V.  American  Society,  87, 
1253,  1256. 

Davis  p.  Bayliss,  169. 

Davis  V.  Bohle,  283. 

Davis  V.  Browne,  39. 


ARE    TO    THE    PAGES. 

Davis  r.  Burnett,  461,  504. 

Davis  r.  Commissioners  of  High- 
ways, 714. 

Davis  r.  Covington  &  M.  R.  Co., 
609. 

Davis  '".  Davis,  253. 

Davis  r.  Foreman,  1152,  1153. 

Davis  r.   Grove,   1363. 

Davis  r.  Hull,  643. 

Davis  V.  Kendall,  1071. 

Davis  V.  Lambertson^  763. 

Davis  /'.  Londgreen,   772. 

Davis  V.  Mayor,  722,  731,  783,  793, 
1318. 

Davis  V.  Niagara  Falls  Co.,  738. 

Davis  r.  Overseer  of  the  Poor,  135. 

Davis  ('.  Port  Arthur  C.  &  D.  Co., 
14. 

Davis  V.  Reed,  689,  1553. 

Davis  V.  Rosedale  S.  R.  Co.,  1630. 

Davis  V.  Stark,  666. 

Davis  i'.  Tileston,  235. 

Davis  /?.  Weaver,  1644. 

Davis's  Ex'rs  r.  Fulton,  1565. 

Davis  &  Farnum  Mfg.  Co.  r.  City 
of  Los  Angeles,  86,  87,  1253,  1255. 

Daw  r.  Eley,  1466. 

Dawson  r.  Beeson,  1358. 

Dawson  v.  Croisan,  484. 

Dawson  v.  Paver,  1443. 

Dawson  r.  St.  Paul  F.  &  M.  Ins.  Co., 
725,  783. 

Dawson  i\  Thompson,  1393. 

Day  v.  Binning,  1047. 

Day  V.  Brownrigg,  60,  1032. 

Day  V.  Candee,  883. 

Day  r.  Hartshorn,  901. 

Day  V.  Martin,  1618. 

Day  r.  Merry,  649. 

Dayton  r.  Commercial  Bank,  181. 

Dayton  ;•.  Drainage  Commission- 
ers, 714. 

Dayton  r.  Multnomah  County,  468. 

Daylon  r.  Relf,  70. 


TABLE   OF  CASES   CITED. 


xlv 


THE    REFERENCES 

Deaderick  v.  Smith,  260,  261. 

Deakin  v.  Lea,  1604.  1612. 

Dean  v.  Borchsenius,  470,  491,  494, 
527. 

Dean  v.  Brown,  629. 

Dean  v.  Charlton,  533. 

Dean  v.  Davis,  444,  458,  519. 

Dean  v.  Madison,  499,  500. 

Deane  v.  Todd,  482. 

Deans  v.  Bowden,  338. 

Dease  v.  Plunkett,  1479. 

Deason  v.  Dixon,  523. 

Deaver  v.  Eller,  1099. 

Debs,  In  re.  33,   1410,    1417,  1418, 
1419. 

Decker  v.  E..  S.  &  N.  R.  Co.,  563. 

Decker  v.  McGowan,  453,  478. 

Dedman  v.  Chiles,  75. 

Deegan  v.  Neville,  663,  669. 

Deere  v.  Guest,  5,  678,  679. 
Deering  Harvester  Co.  v.  Whitman 

&  Barnes  Mfg.  Co.,  1035. 
De  Forth  v.  Wisconsin  &  M.  R.  Co., 

1302. 
De  Give  v.  Seltzer,  746. 
De    Godey    v.    Godey,     1502,     1503, 

1644. 
De  Groot  v.  Jay,  90. 
De  Groot  v.  Peters,  1357. 
De  Groot  v.  Receivers,  112,  317. 
De  Groot  v.  Wright,  1501. 
De  Haven  v.  Covalt,  176. 
Dehon  v.  Foster,  117,  118,  119. 
Deidrichs     v.     The     Northwestern 

Union  R.  Co.,  609. 
Deklyn  v.  Davis,  21. 
De  la  Croix  v.  Villere,  689. 
Delahanty   v.   Warner,    1325,    1329, 

1636. 
Delaney  v.  Brown,  180,  196,  198. 
Delano    Land    Company's    Appeal, 

1238. 
Delaware  v.  Stump,  810. 
Delaware  &  H.  Canal  Co.  c.  Clark, 
1035. 


ARE    TO    THE    PAGES. 

Delaware,  L.  &  W.  R.  Co.  r.  Cen- 
tral S.  T.  &  T.  Co.,  4. 

Delaware  &  R.  Canal  v.  Raritan  & 
D.  B.  R.  Co.,  591. 

Delaware   &   R.    Co.    r.    Camden   & 
A.  R.  Co.,   866,   867. 

Delger  v.  Johnson,  1493,  1567. 

Delondre  v.  Shaw,  978,  1089. 

Deloughrey  l:  Hinds,  459. 

De  Luze  v.  Bradbury,  8,  39. 

De  Manneville  v.  De  Manneville, 
1392. 

Demarest  i\  Hardham,  748. 

De  Mattos  v.  Gibson,  1094. 

Deming  v.  James,  490. 

Dempster  v.  Chicago,  534. 

Denner  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  773. 

Dennett  v.  Reisdorfer,  1585. 

Dennis  v.  Green,  1570. 

Dennison  r.  City  of  Kansas,  1288. 

Dennison  Mfg.  Co.  i\  Thomas  Mfg. 
Co..  1028. 

Dent  i\  Auction  Mart  Co.,  817,  821. 

Dent  V.  Cook,  1237,  1240,  1313.  1315. 

Dent  r.   Summerlin,  1474,  1502. 

Dent  r.  Turpin,  1089,  1090. 

Denver  &  N.  0.  R.  Co.  r.  Atchison. 
T.  &  S.  F.  R.  Co.,  595. 

Denver  &  R.   G.  R.   Co.   r.   United 
States,  20,  21. 

Denver  &  Swansea  R.  Co.   r.  Den- 
ver City  R.  Co.,   794. 

Denny  r.   Brunson,  635. 

Denny   r.   Denny,   1367. 

Depau  V.  Moses,  1367. 

Depeyster    v.    Graves,    1475,    1514, 

1515,  1516. 
Derdeyn  v.  Donovan,  1595. 
De  Riemer  v.  Cantillon,  388. 
Derry  Bank  r.  Heath,  1623,  1629. 

Des  Moines  Gas  Co.  r.  City  of  Des 
Moines,  1257. 


xlvi 


TABLE   OF  CASES   CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Des    Moines    R.    Co.    r.    Carpenter, 

1560. 
Desmond's  Appeal,  1070. 
Desvergers  r.  Willis,  364. 
Detroit  &  B.   P.   R.   Co.   r.  Frazer, 

23. 
Detroit  &  M.  R.  Co.  v.  Brown,  386. 
De  Vaughn  r.  Minor,  803. 
Deveau  r.  Fowler,  1354. 
De  Veney  v.  Gallagher,  676. 
Dever    v.    City    of    Junction    City, 

1286. 
De  Ver  Warner  r.  Bassett,  902. 
Deville     r.   Hayes,    141,    248,    346, 

1384. 
Devin  i:  Scott,  163. 
Devinney  v.  Mann,  216. 
Devlin    v.   Devlin,   1039. 
Devlin   r.    Quigg,    407. 
Devon  r.  Scales,  195. 
Devore  r.  Ellis,  845. 
Devron  v.  First  Municipality,  1253. 

1255. 
Dewar  r.  City  &  S.  R.  Co.,  744. 
Dewey     r.    Superior    Court,     1647, 

1648. 
De  Wilton  v.  Saxon,  1123. 
De  Witt  r.  Hays,  494,  860. 
De  Witt  r.  Van  Schoyk,  781. 
De  Worms  v.  Mellier,  100. 
Dey  V.  Dey,  1502. 
Dial  r.  Reynolds,  124. 
Diamond  r.  City  of  Mankato,  1263. 
Diamond     Match     Co.     r.     Roeber, 

1120,    1158.    1174,    1176,    1177. 

Dickens  r.  ,  957. 

Dir'kens  r.  Lee,  963. 

Dickenson    v.    B.    L.    &    1.    Co.,    36. 

1110. 
Dickenson      r.      Grand      Junction 

Canal  Co..  1118. 
Dickenson   r.   McDermott,   235. 
Dickerson    r.   Armstrong,    1455. 
Dickerson   r.   De   T.a   Vergne   Ref. 

Co..  884. 


Dickerson  v.  Machine  Co.,  896. 
Dickey  v.   Reed,    1260,    1326,    1327^ 

1435. 
Dickinson  v.  Jones,  652. 
Dickson  v.  Dows,  8,  1644,  1653. 
Diehl  V.  Friester,  1439. 
Dierks  v.  Commissioners  of  High- 
ways, 737. 
Dietrichsen  v.  Cabburn,  1146,  1155. 
Dietz  V.  City  of  Neenah,  350,  498, 

530. 
Dietz  V.  Ham  Mfg.  Co.,  885. 
Dietzch  v.  Huidekoper,  126. 
Diggs  V.  Wolcott,  123,  860. 
Dillett  V.  Kemble,  355. 
Dills  V.  Doebler,  1177. 
Dilly  w.  Barnard,  184,  215. 
Dilly  V.  Doig,  922,  1527. 
Dilworth  v.  Robinson,  742. 
Dilworth's  Appeal,  742. 
Dimick  v.  Shaw,  670,  693. 
Dinehart  v.  Lafayette,  51. 
Dings  V.  Parshall,  420. 
Dinwiddle    v.    President    of    Rush- 

ville,  1287,  1289. 
Directors   v.   Trustees,    1637. 
Disbrow  v.  Garcia,  1632. 
Disher  v.  Disher,  642. 
District  Township  v.  Barret,  1270. 
District  Township  of  Lodomillo  v. 

District  Township  of   Cass,   679,. 

1490. 
Dittman  v.  Repp,  739,  748. 
Dixon  V.  Grugenheim,  1089,  1090. 
Dixon  r.  Holden,  968. 
Doan    V.   Board   of  Commissioners, 

1236,  1251,  1271. 
Doane  v.   Lake   Street   El.   R.   Co., 

563,  566. 
Dobbins    v.    City    of    Los    Angeles, 

88. 
Dobbs  V.  Prothro,  1373. 
r)ol)l)s  (\  St.  Joseph  F.  &  M.  L  Co.». 

138. 
Dockrey  r.   French,  410. 


TABLE  OF  CASES  CITED. 


xlvii* 


THE    REFERKNCES 

Dodd  V.  City  of  Hartford,  448. 

Dodd  V.  Flavell,  1576. 

Dodd  t'.  Salisbury  &  G.  R.  Co.,  618. 

Dodd  r.  Wilson,  84. 

Dodge  V.  Card,  883. 

Dodge  1'.  City  of  Council  Bluffs, 
1312. 

Dodge  V.  Pennsylvania  R.  Co.,  785. 

Dodge  r.  Pyrolusite  Manganese 
Co.,  1397. 

Dodge  V.  Strong,  138. 

Dodge  V.  Van  Buren  Circuit  Judge, 
23. 

Dodge  Co.  V.  C.  I.  Co.,  28. 

Doherty  v.   Allman,   634. 

Dolese  r.  McDowgall,  1442. 

Dollahon  v.  Whittaker,  47  J. 

Domestic  &  F.  M.  Society  v.  Hin- 
man,  124. 

Domestic  Telegraph  Co.  v.  Metro- 
politan  Telephone   Co.,   1104. 

Donahue   v.  Johnson,  1631. 

Donaldson  v.  Becket,  991. 

Donaldson  v.  Wright,  952,  1338, 
1649. 

Donelson  v.  Young,  187,  214. 

Donnell  v.  Bennett,  1146,  1149. 

Donnell  i\  Church,  1556. 

Donovan  v.  Allert,  575. 

Doolittle  r.  Supervisors,  725,  1532. 

Dooly  V.   Stingham,   628. 

Dooly  Block  r.  S.  L.  R.  T.  Co.,  561. 

Doran  v.  Carroll,  679. 

Dorman  r.  Dorman,  637. 

Dorn  V.  Fox,  515. 

Dorriss  i\  Carter,  1609. 

Dorsey  v.  Allen,  705,  707,  753. 

Dorsey  v.  Hobbs,  111,  362,  370,  371. 

Dorsey  r.  Simmons,  327. 

Dorsey  Co.  v.  Marsh,  913,  919. 

Dortic  V.  Dugas,  1397. 

Doub  V.  Barnes,  1499. 

Doubleday   v.   Sherman,   930,   1467. 

Dougherty  ik  Dore,  1594. 

Dougherty  v.  Scudder,  65,  1110. 


ARE    TO    THE    PAGES. 

Dougherty  v.  Walker,  1367. 
Doughty  V.  Somerville  &  E.  R.  Co.,. 

46,  1659. 
Doughty  V.  West,  886. 
Douglass  V.  Boardman,  81,  110. 
Douglass  V.  City  Council,  1293. 
Douglass    V.    County    Commission- 
ers, 1515. 
Douglass  V.  Joyner,  260. 
Douglass   V.    Town   of   Harrisville, 

441,  516. 
Douglass  V.  Walton,  391. 
Douglass  V.  Wiggins,  393,  398,  399,. 

656. 
Dow  D.  Northern  R.  R.  Co.,  1213. 
Dowagiac    Mfg.    Co.    v.    Minnesota. 

M.  P.  Co.,  1458. 
Dowell  v.  Goodwin,  214. 
Dowling  r.  Polack,  1579. 
Downes  r.  Monroe,  1580. 
Downing  v.  Lewis,  1157. 
Downing  v.  Mann,  344. 
Downing  v.  Ross,  1245. 
Downshire  r.   Sandys,   649. 
Dows  i\  Chicago,  440,  447. 
Drake  v.  Hanshaw,  216,  219. 
Drake  v.  Hudson  River  R.  Co.,  791. 
Drake  v.  Jones,  353. 
Drake  v.   Phillips,   494,   542,    1578 
Drake    Medicine    Co.    v.    Glessner,. 

1028,  1071,  1073,  1075. 
Drane  r.  Winter,  1483. 
Draper  v.  Draper,  1391. 
Draper  r.  Hudson,  890. 
Draper  r.  Mackey,  787. 
Dreutzer   v.    Frankfort    Land    Co.. 

1664. 
Drew  V.  Town  of  Geneva,  47,  574_ 
Drews   v.    Williams,    1353. 
Driffield  v.  Waterloo  Co.,  969. 
Driscoll  r.  Smith,  44,  47. 
Driver  r.  Hays,  545. 
Drouet  v.  Lacroix,  342. 
Drury  v.  Roberts,  1355. 


xlviii 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Dubach    i\    Hannibal    &    St.    J.    R. 

Co.,  614. 
Dubuque  &  S.   C.   R.   Co.   v.   Cedar 

Falls  &  M.  R.  Co..  101. 
Duck  V.   Peeler,  459. 
Duckett   r.   Dalrymple,   1492,   1519. 
Duektown   Sulphur,   C.  &  I.  Co.  c. 

Fain,  82. 
Ducote  V.  Bordelon,  1372. 
Dudley  v.  Hurst,  435. 
Dudley  v.  James,  1325,  1329. 
Dudley  i\  Mayhew,  933. 
Dudley  v.  Miner's  Ex'rs,  73,  74. 
Dudley  r.  Trustees,  332,  1235,  1293. 
Duff  V.  Russell,  1153. 
Duffy  V.  Meadows,  739,  740. 
Dugan  t\  Cureton,  135. 
Duke  of  Beaufort  i7.  Morris,  696. 
Duke    of    Bedford    r.    Trustees    of 

British  Museum,  1143. 
Dulin  ;;.  Caldwell,  12. 
Dumbould  r.  Rowley,  227. 
Dummer  v.  Chippenham,  1188. 
Dunbar  v.   County  Commissioners, 

1249,  1279. 
Dunbar  v.  Glenn.  1060. 
Duncan    v.    Central    Passenger    R. 

Co.,    1143. 
Duncan  i:  Gibson,  174. 
Duncan  v.  Hayes,  705,   753,   754. 
Duncan  v.  Lyon,  212. 
Duncan  v.  Morrison,   156,  167. 
Dundas  v.  Chrisman  191. 
Dungan  r.   Miller,  94. 
Dunham  v.  Collier,  245,  418. 
Dunham  v.  Miller,  492. 
Dunkart  r.  Rinehart,  644. 
Dunlop    Pneumatic     Tyre    Co.     r. 

Neal,  918. 
Dunn  r.  Baxter,  1388. 
Dunn  r.  Bryan,  37,  643. 
Dunn   r.  City    of   Austin,    756,    757. 
Dunn  r.  Clarke,  1.52,  1528. 
Dunn  r.  Davis.  1588. 
Dunn  r.  Fish.  217.   218. 


ARE    TO    THE    PAGES. 

Dunn  V.  McNaught,  1364. 
Dunnahoo  ik  Holland,  197. 
Dunning  r.  Aurora,  705,  784. 
Dunscomb  v.  Randolph,  323. 
Duplex     Printing     Press     Co.     v. 

Campbell     Printing     Press     Co., 

899,   1668. 
Dupree  v.  Swafford,  1488. 
Durant  'V.  Williamson,  702. 
Durell  V.  Pritchard,  4,  820. 
Durham  v.  Linderman,  442. 
Duryea    v.    National    Starch    Mfg. 

Co.,  1041. 
Dusenbury  v.  Mayer,  525. 
Duvall  V.  "Waters,  645. 
Dwenger  v.  Geary,  309. 
Dwight  V.  Hamilton,  1164,  1166. 
Dyckman  r.  Kernochan,  73. 
Dyer  v.  Armstrong,  327. 
Dyer  v.  School  District,  19. 
Dyers  Company  ?'.  King,  817,  822. 
Dyke  p.  Taylor,  20. 

E 

Eachus  V.  Moss,  679. 

Eakle  v.  Smith,  1599. 

Earl  r.  Matbeney,  220. 

Earl  of  Aylesford  r.  Morris,  89. 

Earl  of  Milltown  r.  Stewart,  89. 

Earl  of  Ripon  v.  Hobart,  705.  706, 
726,  727. 

Earl  &  Wilson  v.  Raymond,  445, 
450,    479. 

Earle's  Admr'x  v.  Hale's  Adm'r 
340. 

Early  t\  Bledsoe,  184. 

Barley's  Appeal,  829. 

Earth  Closet  Co.  r.  Fenner,  889. 

East  Haddam  Bai)tist  Church  r. 
East  Haddam  Ecclesiastical  So- 
ciety, 295. 

East  St.  Louis  R.  Co.  r.  City  of 
East  St.  Louis,   1103. 

East  &  West  R.  Co.   r.   East  Ten- 


TAIiLK   OF   CAS]:S   ClTi:i>. 


xlix 


THE    HEFKUENOES 

nessee,  V.  &  G.  R.  Co.,  602,  604, 

609. 
Eastburn  v.  Kirk,  1565,  1566. 
Eastern    Ky.    Ry.    Co.    r.    Brown, 

1609. 
Eastman  v.  Amoskeag  Manufactur- 
ing Co.,  704. 
Eastman     Kodalc    Co.    r.    Reichen- 

bach,  27. 
Easton   v.   New   York   &    L.    B.    R. 

Co.,  1582,  1606. 
Easton  &  A.  R.  Co.  r.  Inhabitants 

of  Greenwich,  786. 
Eastwood    V.   Lever,    1136. 
Eaton  V.  Markley,  151. 
Eaton  V.  Union  County  Bank,  462. 
Ecclesiastical      Commissioners      v. 

Kino,  822. 
Echelkamp  v.  Schrader,  670. 
Eckerson  v.  Crippen,  832. 
Edelsten  v.  Edelsten,  1072. 
Edgecumbe   v.   Carpenter,  387. 
Edison   Electric   L.    Co.    r.   Beacon 

V.  P.  &  E.  Co.,  895,  896. 
Edison  Electric  L.  Co.  r.  Citizens' 

E.  L.  Co.,  899. 
Edison  Electric  Light  Co.  r.  United 

States     Electric     Lighting     Co., 

1670. 
Edleston  v.  Vick,  1033,  1071. 
Edmanson  v.  Best,  170,  176. 
Edmison    r.    Sioux    Falls    W.    Co., 

1584,   1613,   1622. 
Edmunds  v.  Bird,  1371. 
Edney  r.  King,  1527. 
Edney  v.  Motz,  1564. 
Edward  Thompson  Co.  r.  American 

Law  Book  Co.,  962,  981. 
Edwards  v.  Applegate,  1357. 
Edwards  v.  Bodine,  1617,  1629. 
Edwards    v.    Edwards,    1389,    1621, 

1624. 
Edwards  r.  Haeger,   673. 
Edwards     r.     Haverstick,     Adm'r, 

1372. 


ARE    TO    THE    PAGES. 

Edwards  r.  Jenkins,  1558. 
Edwards   v.    Milledgeville    W.    Co., 

1106. 
Edwards  v.  Ferryman,  1509. 
Edwards  v.  Pope,  1605. 
Edwards  v.  Strode,  376. 
Ehrman    v.    Bartholomew,    1151. 
Eidemiller  r.  Elder,  176. 
Eidemiller  v.  Wyandotte  City,  552, 

553. 
Eidmiller  Ice  Co.  v.  Guthrie,  43. 
Einstein  v.  Bank,  357,  1385. 
Elam  r.  Elam,  1367. 
Elborough  r.  Ayres,  174. 
Electric  Mfg.  Co.  v.  Edison  Electric 

Co.,  895. 
Electric  S.  B.  Co.  v.  Buffalo  E.  C. 

Co.,  924. 
Elder  v.   Bank  of   Ottawa,   1113. 
Elder  r.  City  of  New  Orleans,  1542. 
Elder  v.  Sabin,  369,  1635. 
Elder  v.  Shaw,  1092,  1093. 
Eldred  i\  American  P.  C.  Co.,  1668. 
Eldred  v.  Camp,  1499. 
Eldridge  r.  Hill,  75.  77,  1254. 
Elgin  Butter  Co.  v.  Elgin  Creamery 

Co.,  1023. 
Elgin  National   Watch   Co.    r.   Illi- 
nois Watch  Co.,  1023,  1030. 
Elizabethtown,    etc.,    R.    Co.    r.   A., 

etc.,  Ry.  Co.,  1657. 
Ellett  r.  Newman,  1397. 
Elliot  r.  Whitmore,  1469,  1648. 
Elliott  r.  Elmore,  181. 
Elliott  V.  Thompson,  362,  365,  370. 
Ellis  r.  B.  M.  F.  Assn.,  662. 
Ellis  r.  Commander,  1352.  , 
Ellis  r.  Earl  Grey,  1344. 
Ellis    r.    Hays    S.    &    L.    Co.,    290, 

1397. 
Ellis  V.  Karl,  1272. 
Ellis  r.  Wren,  662. 
Ellison  r.  Bignold,  1199. 
Ellsworth  V.  Cook,  73. 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Ellsworth  V.  Hale,  19,  666. 

Ellwood    M.    Co.    V.    Rankin,    1632, 
1635. 

Elmhirst  r.  Spencer,  772. 

El  Modello  C.  M.  Co.  v.  Gato,  102G, 
1037,  1042. 

Elmslie  v.   Delaware  &  S.   C.    Co., 
591. 

Elson  r.   O'Dowd,  1378. 

Elwes  V.  Payne,  20. 

Ely  V.  City  of  Rochester,  1245,  1247. 

Ely  V.  Crane,  1504. 

Ely  V.  Monson  &  B.  M.  Co.,  907. 

Emack  v.  Kane,  970. 

Emerson  r.  Davies,  961,  1006. 

Emerson  v.  Townsend,  230. 

Emerson  (;.  Udall,  169,  170,  264. 

Emery  v.  Erskine,  841. 

Emmert  r.  Richardson,  1179. 

Emmons  v.  Pidcock,  1571. 

Emperor  of  Austria  v.  Day,  29,  42. 

Empire  Loan  &  Building  Associa- 
tion V.  City  of  Atlanta,  1644. 

Endicott    v.    Mathis,    15,    55,    1471. 
1479. 

Bndres  v.  Lloyd,  181,  1407. 

Endter  v.  Lennon,  251. 

Enfield    T.     B.    Co.   v.    Connecticut 
River  Co.,  857,  871. 

Enfield  T.  B.  Co.  v.  Hartford  &  N. 
H.  Co.,  855,  869. 

Engel  V.  Scheuerman,  259. 

England  ;;.  Carling,  1349. 

English  V.  Miller,  253. 

English    V.    Progress    E.    L.    &    M. 
Co.,  753. 

English  r.  Smock,  1238,  1303. 

Engs  V.  Peckham,  723,  725,  727. 

Engstad  r.  Dinnie,  1238,  1268. 

Ennis  v.  Ginn,  229. 

Ennor  v.  Barwell,  772. 
Enoch    Morgan's   Sons   Co.   v.   Gib- 
son,  1451.   1472. 
Ensign  v.  Colburn,  433,  657. 


ARE    TO    THE    PAGES. 

Enterprise    Mfg.    Co.    v.    Sargent, 

930. 
Enterprise   Savings   Association   v. 

Zumstein,  1338,  1339. 
Equalization  Board  r.  Land  Own- 
ers, 445. 
Equitable    Co.    v.    Baltimore    Co., 

1095,   1106. 
Erdman  (;.  Rosenthal,  1387. 
Erhardt  i\  Boaro,  694. 
Erickson    i\   First  National    Bank, 

44,  1113. 
Erie  Canal  Co.  v.  Walker,  842. 
Erie  Co.   v.   Ramsey,  1425,   1430. 
Erie    R.    Co.    v.    Delaware    R.    Co., 

335,  619. 
Erie  R.  Co.  v.  Ramsey,  70. 
Ernest  v.  Nicholls,  1208. 
Ernst  V.  New  Orleans  W.  Co.,  1200. 
Errington  r.  Aynesly,  89. 
Errlssman  v.  Errissman,  1391. 
Erskine  v.  Staley,  93. 
Ertle  V.  Leary,  1263. 
Erwin's  Appeal,  1408. 
Eskridge  v.  Eskridge,  663. 
Espey  V.  Lake,  1111. 
Esson  V.  Wattier,  725,  802. 
Estcourt   r.  Estcourt  Hop  Essence 

Co.,  1087. 
Estes  V.  Leslie,  1086. 
Estes  V.  Williams,  1086. 
Estes  r.  Worthington,  1087. 
Estis  r.  Prince,   1581. 
Eureka  K.   R.  Co.   r.  California  & 

N.  R.  Co.,  102,  622. 
Eureka  M.  Co.  v.  Richmond  M.  Co., 

1649. 
Evan  V.  Avon,  1188. 
Evans  r.  Bremridge,  1383. 
Evans  r.  Coventry;  1198. 
Evans  r.  Davis,  1129. 
Evans  r.  Lovengood.  315,  316. 
Evans  v.  Missouri,  I.  &  N.  R.  Co.. 

GOG,   607. 
Evans  r.  Reading  C.  F.  Co.,  740. 


TABLE  OF  CASES  CITED. 


li 


THE  REFERENCES 

Evans  v.  Taylor,  100,  105. 

Evans  v.  Wilmington  &  W.  R.  Co., 

737.     • 
Evansville  Bank  v.  Britten,  487. 
Evelyn  v.  Lewis,  91. 
Everett  v.  Marquette,  788. 
Everly  v.  Rice,  1480. 
Eversfield    v.    Mid-Sussex   R.   Co., 

618. 
Eversole  r.  Cook,  515,  521. 
Evitt  r.  Price,  26. 
Ewell   r.   Greenwood,  724,  725. 
Ewelme    Hospital    r.   Andover,    75. 
Ewertsen     v.     Gerstenberg,     1137, 

1143. 
Ewing  (;.  Board  of  Education,  545. 
Ewing  V.  Chase,  1373. 
Ewing  V.  City  of  Webster,  1253. 
Ewing  V.  Nickle,  169. 
Ewing  V.  Rourke,  38. 
Ewing  V.  St.  Louis,  239,  240,  331. 
Exchange  Bank  r.  Hines,  444,  466. 
Exnicios  r.  Weiss,  166. 
Express  Cases,  597. 
Eyre  r.  Everett,  1377. 
Eyre  v.  Higbee,  966. 


F 


Fahlor  r.  Board  of  Commissioners, 

441. 
Fahs  V.  Roberts,  1560. 
Fairbank    v.     Cudworth,    434,   657, 

658. 
Fairbank  Co.  r.  Bell  Mfg.  Co.,  1049, 

1064. 
Fairbank  Co.   v.  Luckel   Soap   Co., 

1019,  1067,  1071,  1073. 
Fairbanks   r.    Jacobus,    1047,   1080. 
Fairchild  v.  Knight,  1385. 
Fairthorne  i\  Weston,  1346. 
Faison  r.  Mcllwaine,  236,  1539. 
Fajder  v.  Village  of  Aitkin,  516. 
Fales  i\  Wentworth,  919. 


ARE    TO    THE    PAGES. 

Falk    (;.   Brett   Lithographing   Co., 

950. 
Falk  V.  Donaldson,  950. 
Falk  V.   Gast  Lithograph  Co.,  950. 
Falkinburg    r.    Lucy,    1020,    1021, 

1567. 
Fall  V.  County  of  Sutter,  858,  872. 
Falloon  r.  Schilling,  747. 
Falls  V.  Krebs,  207. 
Falls  V.  W.  P.  Co.  V.  Tibbetts,  690. 
Fanning  r.   Dunham,   54,  93,   1100. 
Fargo  7;.  Ames,  1486,  1503,  1504. 
Fargo  r.  Hart,  472. 
Farina  v.  Silverlock,  1083,  1084. 
Faris  r.  Reynolds,  539. 
Farland  v.  Wood,  50,  51. 
Farmer  v.   Calvert  L.   E.   &  M.   P. 

Co.,   957,  959,  977,  1547. 
Farmer  v.  Elstner,  942,  975. 
Farmers  R.  Co.  r.  Reno  R.  Co.,  7, 

581. 
Farmers  S.  &  B.  L.  Assn.  r.  Kent, 

412. 
Farnsworth  v.  Fowler,  24,  1432. 
Farquhar  v.  National  Harrow  Co., 

970. 
Farrand  v.  Marshall,  717. 
Farrant  v.  Lovel,  393,  398,  650,  654, 

655. 
Farrell  v.  Cook,   737. 
Farrow  v.  Vansittart,  678. 
Faulkner  v.  Campbell,  266. 
Faust  V.  City  of  Huntington,  1291. 
Fawcet  v.  Pendleton,  95. 
Fawcett  v.  Laurie,  1214. 
Fears  v.  Riley,  1589,  1610. 
Featherston   v.   Small,  1245. 
Fechter  v.  Montgomery,  1103. 
Fehrle  v.  Turner,  373. 
Feilden  v.  Slater,  1139. 
Feistel   v.   Kings   College,   1486. 
Fellows  V.  Fellows,  1110,  1526. 
Fellows  ?'.  Heermans,  1659. 
Fellows  V.  Walker,  1279,  1317. 
Fells  V.  Read,  428. 


lii 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Felsenthal  v.  Johnson,  448. 
Felton  V.  Justice,  684. 
Fendley,  In  re,  274. 
Fennings    v.    Humphrey,   1425. 
Fentress  v.  Robins,  173. 
Ferguson,  In  re,  287. 
Ferguson    r.    Bobo,    385,    386. 
Ferguson  v.  Covington,  etc.,  B.  Co., 

593. 
Ferguson    v.    Fisk,    85. 
Ferguson  v.  Herring,  143,  1588. 
Ferguson  v.  Tipton,  1584,  1586. 
Fernald  r.  Knox  W.  Co.,  779. 
Fernandez  r.  Casey,  1619. 
Fernie  v.  Maguire,  39. 
Ferrand  v.  Hamer,  1560. 
Ferrars  v.  Ferrars,  1392. 
Ferrell  v.  Allen,  136,  138. 
Ferrell  v.  Woodward,  875. 
Ferrin  v.  Errol,  321. 
Ferris  r.  American  B.  Co.,  1129. 
Fetherstonhaugh   v.  Hagarty,  1123, 

1125. 
Fetridge  r.   Wells,   1079. 
Ffooks    r.    South    Western    R.    Co., 

1207. 
Fickes  v.  Vick,  149. 
Field  V.   Barling,   790,  853. 
Field  0.  Cory,  64. 
Field  V.  Jackson,  626,  627. 
Field  V.  McKinney,  171. 
Field      )'.      Village      of      Western 

Springs,    517,    1484. 
Fielden  r.  I^ancashire  &  Y.  R.  Co., 

20. 
Fields  V.  Killion,  385. 
Fifield    r.    Marinette   Co.,   445,   450, 

481. 
Filder  v.  London  R.  Co.,  1208,  1212. 
Filkins  v.   Blackman,  1090. 
Filley  v.  Child,  1045,  1087. 
Filley   r.   Fassett,   1033,  1075. 
Fillingin    v.   Thornton,    289,   372. 
Kinch   r.  Oroen,  713. 
Findley  v.  Findley,  1396. 


Fingal  r.  Blake,  654. 
Finger  r.  Hahn,  1157,  1171. 
Finnegan    i\   City   of    Fernandina, 

444,    452,    533. 
Finney  v.  Clark,  222. 
Finney  r.  Lamb,  537,  1301. 
Firmstone  r.   DeCamp,   1474,   1502. 
First  National  Bank  v.  Bailey,  459. 
First    National    Bank    r.    City    of 

Covington.  486,  487. 
First  National   Bank  v.  County  of 

Douglas,    486. 
First    National    Bank    r.    Farwell, 

488. 
First    National    Bank    r.    La   Due, 

117. 
First  National    Bank  v.   Meredith, 

488. 
First  National  Bank  r.  Sarlls,  713, 

719,  1258. 
First  National   Bank  of  Shawnee- 

town  r.  Cook,  480. 
First    National    Bank    of   Utica    r. 

Waters,  487. 
Fishback    r.    Williams,     244,    375, 

380,    1627. 
Fisher  r.  Appollinaris  Co..  1082. 
Fisher  r.  Beard,  1495. 
Fisher   /•.   Board   of  Trade  of  Chi- 
cago, 1195. 
Fisher  v.  Carpenter,  667. 
Fisher  r.  Keane,  1196. 
Fisher  r.  Patton,  1204.  1543. 
Fisher  r.  Tribby,  1637 
Fishmongers  Co.  r.  East  India  Co., 

784. 
Fisk  r.  Chicago.  R.  I.  &  P.  R.  Co.. 

1193. 
Fisk   r.  City  of   Hartford,   12,   844. 
Fisk   /•.  Union   Pacific  R.  Co..   125, 

1198. 
P^iske  /\  Hazard.  542. 
Fitch   r.   Polke.   212.   371.   372.   377. 
Fitch  r.  Rochfort.  1480. 
Fitz  r.  lies.  1134,  1135. 


f 


TABLK   OF  CASES  CITED. 


liii 


THE    REFEKENCES 

Fitzgerald  v.  Hams,  1245. 
Fitzhugh  p.  City  of  Bay  City,  525. 
Fitzhugh  t\  Gordon,  1101. 
Flaccus  i\  Smith,  1107. 
Flack  V.  Hughes,  535,  536,  1299. 
Flaherty  c.  Kelley,  252. 
Flamang's  Case,  661. 
Flanders  v.  Wood,  876. 
Flannegan  r.  Hardman,  1407. 
Flavel  r.  Harrison,  1080. 
Fleckenstein  Bros.  Co.  y.  Flecken- 

stein,  1107. 
Fleischman  v.  Young,  1653. 
Fleischner  v.   Citizens   I.   Co.,   747. 
Fleming  v.   Collins.  110,   390. 
Fleming  v.   Collins' Adm'r.  639,642. 
Fleming  v.  Guthrie,  1341. 
Fleming  v.  Patterson,  1425,  1432. 
Fleming  v.  Stahl,  1325,  1329. 
Fletcher  r.  Bealey,  706,  765. 
Fletcher  r.  Tuttle,  6,  35. 
Fletcher  v.  Vandusen,  1347. 
Flickinger  v.  Hull,  156. 
Flint  V.  H.  S.  B.  Co.,  970. 
Flint  /;.  Jones,  987. 
Flippin    r.   Knaffle,   6,   9.   201. 
Flood   V.  Van  Wormer,   1322. 
Florence  t\  Paschal,  1563. 
Florence    Sewing    Machine    Co.    v. 

Grover  &  Barker  S.  M.  Co.,  1093. 
Florence    Sewing    Machine    Co.    v. 

Singer    Manufacturing    Co.,    915, 

1093. 
Florida  Coast  Co.  v.  Young,  1662. 
Floyd  V.   Gilbreath,  444,  456. 
Floyd  V.  Turner,  1478. 
Folkerts   v.   Power,   498. 
Folley  r.  City  of  Passan,  552,  602, 

1292. 
Follmer  r.  Nuckolls  Co.,  1261,  1262. 
Folsom    r.    Marsh,    956,    959,    963, 

966. 
Foltz  r.  St.  L.  &  S.  F.  Ry.  Co.,  46, 

47. 
Fones  Hardware  Co.  v.  Erb,  1262. 


ARE    TO    THE    PAGES. 

Foot  V.   Bronson,  4,  719,  769,  772, 

773. 
Foot  v.  Lea,   1084. 
Foote  V.  Linck,  466,  860. 
P'orbes  ?.'.   Delashmutt,  599. 
Forbes  v.   Hall,  333. 
Ford  V.  Farmer,  1335.  i 

Ford  V.  Foster,   1042,  1076,   1081. 
Ford  V.  Loomis,   1635. 
Ford  /;.  Rigby,  142,  347. 
Ford  V.  Weir,  65. 
Forgey    r.    Northern    Gravel    Road 

Co.,    531,    546,    547. 
Forney  r.  Calhoun  Co.,  1511. 
Forrester  v.  B.  &  M.  Co.,  1204. 
Forsythe  r.  Winans,  1439.  ' 

Fort  V.  Groves,  703,  784. 
Fort  V.  Thompson,  1275. 
Fort  Clark  H.  R.  Co.  r.  Anderson, 

588. 
Fort   Pitt   B.   &   L.   Assn.    r.   M.   P, 

B.  &  L.  Assn.,  1056. 
Fort  Worth  S.  R.  Co.   v.  Rosedale 

S.  R.  Co.,  1657. 
Fortescue  r.   Bowler,  398. 
Forth  V.  Town  of  Xenia,  1610. 
Foshee  v.  McCreary,  169,  176. 
Foste  V.   Shephard,  1576. 
Foster,  Ex  parte.  112,  329,  669. 
Foster    v.    Ames,    285. 
Foster  v.  Ballenberg.   20. 
Foster  v.  Birmingham  R.  Co.,  1118, 

1119. 

Foster  v.  Blood  Balm  Co.,  1083. 

Foster   v.    Hornsby,    1323. 

Foster  v.   Kenosha,    510,    535,    536, 

1299. 
Foster  v.  Moore,  887,  888. 
Foster   v.    Reynolds,    409. 
Foster  v.   Wood,    146. 
Fothergill  v.  Rowland,   1095,  1096. 
Fountain    v.    West,    1606. 
Fowble  r.  Kemp,  1542,  1543. 
Fowle    V.    House,    1640. 
Fowler,   Appeal    of,    1403. 


liv 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Fowler  r.  Beckman,  24,  1431,  1432, 

1450. 
Fowler  r.  City  of  St.  Joseph,  498, 

501. 
Fowler   c.   City   of   Superior,   1276, 

1278. 
Fowler  v.  Scott,  1586. 
Fowler  c.  Williams,  1515. 
Fowlers  Appeal,  1403. 
Fox   V.    Hudson,    1379. 
Fox  V.  Scard,  1120,  1183. 
Fox  River  F.   &  P.   Co.    r.   Kelley, 

835. 
Foxworth  r.  Magee,  1499,  1500. 
Fraas    v.    Barlement,    1456. 
Frahm    c.    Walton,    1596,    1633. 
Fralich   v.   Despar,   27. 
France    c.    France,    1555. 
Frank  v.  Brunnemann,     393,     399, 

656. 
Frank  v.  Herold,  1410,  1412. 
Frank  v.  Peyton,  319. 
Frank  v.  Robinson,   1397. 
Franklin  c.  Appel,  43. 
Franklin    v.    Pollard    Mill    Co.,    14, 

760. 
Frantz  v.   Waggaman,   1590. 
Fraser   v.   Wha.ley,   1204,    1230. 
Frazer  v.   Slebern,   488,   489. 
Frazier   v.    Southern   L.   &   T.   Co., 

284. 
Frazier   v.  White,   43. 
Frearson  v.   Loe,   917,   918. 
Frederick  v.  Douglas  County,  1238, 

1240,   1314. 
Frederick  Co.  Bank  v.  Shafer,  1397. 
Fredericks  v.   Ruber,   8,  10,  310. 
Freeland  v.   Reynolds,  142. 
Freeman  v.  Carpenter,  101. 
Freeman  v.   City  of  Huron,  1460. 
Freeman    r.    Deming,    1428. 
Freeman    r.    Elmendorf,    240,    245, 

344,    345. 
Freoman  r.  Fort,   282. 
Freeman   v.   Miller,   249. 


ARE    TO    THE    PAGES. 

P^reeney    r.    First    National    Bank, 

123. 
Freer    r.    Davis,    664,    669. 
Fremont    v.   Boling,   442. 
Fremont    v.    Early,    492. 
Fremont    v.    Merced    M.    Co.,    694. 
Fremont    F.    &    B.    Co.    v.    Dodge 

Co.,   873. 
French  v.  Conelly,  999. 
French  v.  Hay,  125,  126. 
French  v.  Howard,  362,  366. 
French  v.  Macale,  1120,  1121,  1122. 
French  r.  Maguire,  990,  998. 
French  v.  Parker,  1163. 
French  v.  Smith,  845. 
French   Manufacturing  Co.,  In  re, 

1197. 
French    P.    &    0.    Co.,    v.    Porter, 

1594,    1635. 
French    Republic    v.    Saratoga    V. 

S.    Co.,    1026,    1027,    1087. 
Frese   v.   Bachof,  1047,   1048,   1050. 
Freshwater  v.  Pittsburg,  ^V.  &  K. 

R.    Co.,    605,    1646. 
Frevert    r.    Finfrock,    554. 
Frewin  r.   Lewis,   1247. 
Friedlander    r.    Ehrenworth,    1502. 
Frierson   r.   Moody,   229,  1102. 
Frieze  v.  Chapin,  379.  409. 
Frink  v.  Lawrence,  725,  1532. 
Frink  v.   Stewart,   667. 
Fritz    v.    Erie   City    P.   Ry.,   8. 
Frizell  v.  Rogers,  568. 
Frogley  r.  Earl  of  Lovelace,  1132. 
Frost   r.   Myrick,   97. 
Frost  V.   Thomas,   1337. 
Frostburg  Building  Association  v. 

Stark,    1204,    1205. 
Frowd  r.  Lawrence,  72. 
Frye   (;.   Patridge,   1139. 
Fryer    r.    Warne,    838. 
Fryser   v.   Russell,   489. 
Fulbright  r.  Higginbotham,  311. 
Fuller,  In  re,  274. 


TABLE  OF  CASES  CITED. 


Iv 


THE    REFERENCES 

Fuller  V.  Bemis,  950. 
Fuller  V.    Daniels,   831. 
Fuller  V.   Huff,   1020,   1025. 
Fuller   V.    Inhabitants   of   Melrose, 

1244. 
Fuller  V.  Townsley  Co.,  176. 
Fullerton  v.   Pool,   1601. 
Fullwood  V.  Fullwood,  1037,  1088. 
Fulton  V.  City  of  Davenport,  522. 
Fulton  V.  Greacen,  839. 
Fulton  V.  Harman,  688. 
Fulton  V.  Short   Route   R.    T.    Co., 

581. 
Fulton  V.  Town  of  Dover,  552. 
Fulton     Bank     v.     New     York     & 

Sharon   Canal    Co.,    1510. 
Furbush  v.   Bradford,   880. 
Furlong    v.    Edwards,    1499. 
Fuselier    v.    Spalding,    735. 


G 

G.    H.    &    S.    A.    R.    Co.    V.    Tait, 

715. 
Gable   v.    Wetherholt,    382. 
Gaertner  v.  City  of  Fond  du  Lac, 

1248,    1249,    1540. 
Gage   V.   Evans,    443. 
Gage  V.   Graham,   465,    475. 
Gage    V.    Parker,    1497. 
Gage-Downs    Co.    v.    Featherstone 

Corset    Co.,    1026. 
Gaines  v.   Kennedy,   386. 
Gaines    v.    Springer,    536. 
Gaines    v.    Thompson,    1338. 
Gainsborough    i\    Gifford,    137. 
Gainty    v.    Russell,    187,    202. 
Galbraith   v.   Martin,    188. 
Galbreath    v.    Everett,    1371. 
Gale    V.    Abbott,    4,    756,    817,    823, 

825. 
Gall   v.   Cincinnati,    1247,    1316. 
Gallagher    v.    Equitable     Gaslight 

Co.,     1107. 


ARE    TO    THE    PAGES. 

Gallagher   r.   Fayette   Co.   R.   Co., 

612. 
Gallaher    v.    Michel,    287. 
Gallaher   v.    Schneider,    1649. 
Galloway    v.    Jenkins,    1309. 
Galloway  v.   The   Mayor,   1649. 
Galusha  v.  Flour  City  Bank,  1113. 
Galveston,     H.    &    S.    A.    R.    Co. 

V.    Dowe,    78,    216,    217. 
Galveston,   H.    &   S.   A.   R.    Co.   v. 

Ware,    176,    178,    223,    1616,    1630. 
Galway    v.    M.    E.    R.    Co.,    16. 
Gamble    v.    Campbell,    1487,    1577. 
Gamble    v.    Loop,    242,    352. 
Gamewell   F.  A.   T.   Co.    v.   Crane, 

1158. 
Gamewell   F.    T.   Co.   v.   Municipal 

Signal    Co.,    925,    1650. 
Gammage  v.  Georgia  Southern  R. 

Co.,  607. 
Gannon   v.   Peterson,    653. 
Gano    V.    White,    150. 
Gantt   V.   Grindall,   411. 
Garcie  v.  Sheldon,  1606. 
Gardner  v.  Douglass,  402. 
Gardner  v.  Gardner,  1497. 
Gardner  ;;.  Hershey,  419. 
Gardner  v.  Jenkins,  216. 
Gardner  v.  Mayor  of  Jersey  City, 

1292. 
Gardner  v.  Newburgh,  701,  760. 
Gardner  v.  Stroever,  5,  38,  780,  781. 
Gardner  r.  Terry,  349. 
Gardner  v.  The  Trustees  of  New- 
burgh,   769. 
Gardt   r.    Brown,    1655. 
Garlington  v.  Copeland,    1631,   1635, 

1643. 
Garner  v.   Second   National   Bank, 

125. 
Garnett   v.  Jacksonville,   St.   A.   & 

H.   R.   R.   Co.,   582. 
Garr  v.    Hill,   1653. 
Garretson   v.    Cole,    4,   338. 


Ivi 


TABLE  OF  CASES  CITED. 


THE  REFERENCES 

Garretson    v.    Weaver,    1361. 
Garrett    v.    Bishop,    663. 
Garrett   v.   Garrett   &   Co.,    1040. 
Garrett  v.  Logan,  1629,  1636. 
Garrett  r.    L.   R.    E.    Co.,   562. 
Garrigus      r.      Commissioners      of 

Parke    Co..    537. 
Garrison    v.    City    of    Atlanta,    86, 

1253. 
Garrow    r.    Carpenter,    1519,    1657. 
Garth  v.  Cotton,  639,  644,  650. 
Gartside    v.    East    St.    Louis,    1188, 

1251,   1253. 
Gartside    r.    Outram,    28. 
Garvey  v.  L.  L  R.  Co.,  738. 
Garwood  v.  New  York  C.  &  H.  R. 

R.   Co.,   836. 
Gahs    V.    Ledbetter,    329. 
Gaskin  v.  Balls.  1136. 
Gaskins  v.  Peebles,  336,  1493. 
Gas  Light  &  Coke  Co.   r.   City  of 

New   Albany,  1092,   1093. 
Gas  Light  &  Coke  Co.  v.  Vestry 

of  St.  Mary  Abbott's,  573. 
Gass's    Appeal,   312. 
Gates    ;;.    Ballon,    1508. 
Gates    V.    Barrett,    451. 
Gates  V.   Bucki,   123. 
Gates  V.    Lane,    163,    223. 
Gates  V.   McDaniel,   855,   874. 
Gatewood  v.   Burns,  344,  1382. 
Gatewood  r.  City  Bank  of  Macon, 

229. 
Gault  V.   Goldthwaite,    1624. 
Gault  V.  Wallis,  33,  86,  164. 
Gaunt   V.    Fynney,    680,    739,    825. 
Cause    '('.    Perkins,    666,    669,    688, 

690. 
Gay    r.    Hancock,    362,    370. 
Gay   r.    Hebert,   444,    449,    451. 
Gayle  r.   Fattle,   362.   366.  370. 
Gcrans    v.    Baker,   647. 
deary    i;.    Norton,   921. 
Gee    i\    Pritchard.   965.   966,    1359. 
Geiger  v.  Green,  1485, 


ARE   TO    THE   PAGES. 

General    Electric    Co.    v.    C.    &   L. 

R.   Co.,   567. 
General    Electric    R.    Co.    r.    C.    & 

W.    L    R.    Co.,   566,   588. 
Genesee  Salt  Co.  v.   Burnap,  1026, 

1027. 
Gentry    v.   Hamilton,   1565. 
Gentry  v.  Lockett,  147. 
George    o.    Central    R.    &    B.    Co., 

1218. 
George  o.  Cooper,  1374. 
George   v.   Dean,    444,   449,   450. 
George    v.    Strange,    232. 
George    Ertel    Co.    i'.    Stahl,    884. 
Georges   v.   Detmold,   630. 
Georgetown  v.  Alexandria,  796. 
Georgia    r.    Atkins,    489. 
Georgia  Chemical   Co.   v.   Colquitt, 

737. 
Georgia   Mutual   Loan   Association 

V.    McGowan,    453. 
Georgia  Pacific  Railway  v.  Mayor, 

38. 
Georgia  Slate  Co.  r.  Davitte,  1644. 
Germain  r.  Wilgus,  879,  881. 
German    r.   Clark,   662. 
German    Church    r.    Maschap,   303, 

309. 
German     Printing     &     Publishing 

Co.     /•.     Illinois    Staats    Zeitung 

Co.,  1265. 
German    Savings    Bank    r.    Habel, 

1445. 
Gerrard    r.    O'Reilly.    1121. 
Gerrish     r.    Hunt.    222,    224. 
Gerrish   v.   Seaton.  222,  224. 
Gerry  r.  Stimson,  358. 
Gessler    v.    Grieb.   1020,   1022. 
Gibbons  v.   Ogden,   863. 
Gibbs    V.    Green,    1340. 
Gibbs  V.   Morgan,   1444. 
Gibby    r.    Hall,    1506. 
Gibson    t:    Gibson,   52,   1544. 
Gibson  v.   Moore,   100,  101. 


TABi,K   OF  CASKS   CITKD. 


Ivii 


THE    REFERENCES 

Gibson  v.  O'Connell,  1583. 
Gibson  v.  Reed,  1579. 
Gibson  v.  Smith,  629. 
Gibson  /?.  Tilton,   1564. 
Gibson  v.  Van  Dresar,  895. 
Gibson's  Adm'r  c.  Armstrong,  265. 
Gibson's  Heirs  v.  Niblett,  409. 
Giddens  v.   Lea,   231,   1099. 
GiiTord  r.  Morrison,  148,  224. 
Gifford   r.   N.   J.   R.   R.  Co.,   1314. 
Gifford    V.    New    Jersey    R.    &    T. 

Co.,    1204. 
Gilbert  v.  Arnold,  293. 
Gilbert    v.    Morris    C.    &    B.    Co., 

710,    717,    732. 
Gilbert  v.   Showerman,   753. 
Gilder  v.    Merwin,    193. 
Gile  V.  Hallock,  353. 
Gilfillan  v.  Grier,  14. 
Gill   ('.  Ferris,  1157. 
Gillespie  v.  Broas,  1324. 
Gillespie  v.  Forrest,  719,  777. 
Gillett    0.    Treganza,    651. 
Gillette   v.   City  of  Denver,    445. 
Gillingham  v.   Beddow,   1358. 
Gillott    V.    Esterbrook,    1032,    1033. 
Gilman  v.  Hunnewell,   1021,   1022. 
Gilman  v.  Philadelphia,  797. 
Gilmore  v.  Fox,  547,  548. 
Gilmore  v.  Norton,    547. 
Gilroy's  Appeal,  1326. 
Ginesi  v.  Cooper,  1164. 
Gist    v.  '  McGuire,    1617. 
Glaenzer  r.  Wiederer,  901. 
Glaessner    r.    A.-B.    B.    Assn.,    562, 

780,  793. 
Glass  V.  Clark.    1555,     1640. 
Glass  V.  Smith,  220 
Glasscott    r.    Copper    Miners    Co., 

1518. 
Glassington    r.    Thwaites,    1348. 
Gleason  i\  Jefferson,  1296. 
Glen    Cove    M.     Co.     r.    Ludeling, 

1073. 
Glendenning    r.    Ansley,    107. 


ARE    TO    THE    PAGES. 

Glen  &  Hall  M.  Co.   r.  Hall,  1C31. 

Glenn   v.   Waddel,  449,   546,   547. 

Glenny    o.    Smith,    1067. 

Glos    r.    Swigart,    475 

Glossop  ij.  Heston  &  Isleworth 
Local   Board,    776. 

Glover  r.  McGaffey,  1582 

Glover  r.  Swartz,    4. 

Goate  V.   Fryer,   1404. 

Gobeille   r.  Meunier.  675,  676,  679. 

Goch   /•.   Marshall,  1431. 
I  Goddaid    r.    C.    &    N.    W.    R.    Co., 
I       1484. 
j  Goddard  v.  Stockman,  539. 

Godfrey  r.  Black,  1123. 

Godillot  V.  Harris,  1049.   1075. 

Goedgen  ».  Supervisors,  1301,  1302. 
1305. 

Goff  V.  Supervisors  of  Outgamie 
Co.,    480,    481. 

Goforth  V.  Rutherford  R.  C.  Co., 
537,    538.    1303. 

Gold  v.  Johnson,  1482. 

Gold  &  Stock  Telegraph  Co.  r. 
Todd,  1147. 

Golden  /•.  City  of  Guthrie,  87. 
1253,    1255. 

Golden  Gate  C.  H.  M.  Co.  r.  Su- 
perior   Court,    24,    1469. 

Goldfrank  v.  Young,  415. 

Goldman  v.  Gillespie,  1331. 

Goldmark    v.    Kreling,    991. 

Goldsmith    p.    Elsas,    812. 

Goldsmid  r.  Tunbridge  Wells  Im- 
provement Commissioners,  774, 
775. 

Goldstein  v.  Kelly,  358. 

Goldsworthy  v.   Boyle,  1326. 

Gonzales   r.    Sullivan,    504. 

Gooch   V.   Vaughan,    413. 

Good   IK   Sherman.  1197. 

Goodale   r.   Goodale,  26. 

Goodall  V.  Crofton,   748. 

Goodell  r.  Blumer,  357. 

Goodell   r.  Lassen,   667,  668. 


Iviii 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Goodhart  v.  Lowe,  44. 

Goodin  v.   Cincinnati   R.   Co.,   619, 

1207. 
Goodman    v.    Henley,    169. 
Goodman    v.    Kine,    53. 
Goodnough  v.   Slieppard,   245,   337. 
Goodrich   r.   Moore,   3. 
Goodwin    v.    Mayor    of    Savannah, 

529. 
Goodwin   v.    New   York,    N.    H.    & 

H.    R.    Co.,    52,    584. 
Goodwin  v.  Spray,  656. 
Goodyear  v.  Allyn,    922,    927. 
Goodyear  r.  Berry,   896. 
Goodyear  v.  Bourn,   916,   923. 
Goodyear  v.  Central  R.  R.  of  New 

Jersey,    887,    888,    896,    898. 
Goodyear  v.  Day,    881. 
Goodyear  v.  Dunbar,    906. 
Goodyear  v.  Evans,   896,   921. 
Goodyear  v.  Honsinger,    909,    910. 
Goodyear  r.  Mullee,    930. 
Goodyear  v.  New     Jersey     R.     R., 

922. 
Goodyear  v.  Phelps,     922. 
Goodyear  v.  Rust,     896. 
Goodyear  Dental  Vulcanite  Co.  v. 

Folsom,   60. 
Gooseman    v.    Dann,    1434. 
Gordon    v.    Winston,    722. 
Gorham  v.  Toomey,  251. 
Goring  v.    McTaggart,    498,   499. 
Gorsuch  V.  Thomas,  137,  179. 
Gorton   v.   Brown,   1593. 
Gorton  v.  Tiffany,  845. 
Goszler  v.  Corporation  of  George- 
town,   1285,   1286. 
Gott  V.  Carr,  169,  205. 
Gottschalk    r.    Lincoln    &    N.    R. 

Co.,   598. 
Gould,  Ex  parte,  1461. 
Gould  r.  Canham,  1352. 
Gould    V.    City    of    Rochester,    725. 
Gould   V.   Hayden,   257. 
Gould    V.    Loughran,    135. 


ARE    TO    THE    PAGES. 

Gould    v.    Mayor    of    Atlanta,    512, 

513. 
Gould  V.   Sessions,   930,   1472. 
Gouraud    v.    Trust,    1039. 
Gout   ('.   Aleploglu,   1051. 
Gowan  v.   Graves,   1382. 
Graeff    v.   Felix,   1326. 
Grafton   v.   Brady,    1511,   1512. 
Graham    v.    Birkenhead    L.    &    C. 

J.   R.   Co.,   1206. 
Graham   v.   Campbell,   1550,    1626. 
Graham  v.  City  of  Greenville,  522, 

1265. 
Graham  v.  Dahlonega    G.    M.    Co., 

837. 
Graham  v.  Flynn,  568. 
Graham  v.  Horton,   1535. 
Graham  v.  Keene,    714. 
Granard  v.  Dunkin,  965,  966. 
Grand     Junction     Canal     Co.     v. 

Dimes,    1456,    1460. 
Grand     Junction     Canal     Co.     v. 

Shugar,  837. 
Grand   Rapids   S.    F.   Co.  v.   H.   S. 

F.  Co.,  970. 
Grand  Tower  Mining  Co.  r.  Schir- 

mer,  222,  223. 
Grant  v.  City  of  Davenport,  1280. 
Grant  v.  Cole,  144. 
Grant  v.  Crow,  662. 
Grant  t'.  Johnston,   1645. 
Grant  v.  Moore,    252. 
Grant  v.  Quick,    251. 
Grant  County  v.  C.  &  U.  S.  Mort- 
gage Co.,  1499. 
Grantland  v.  Wight,  376,  1524. 
Grannis  v.  County  Commissioners, 

1238. 
Grannis    /;.    Lorden,    1474. 
Grass  /;.  Hess,  222,  223. 
Gravenstine's    Appeal,    1212. 
Graver    v.    Faurot,    139. 
Graves    /;.    Smith,    323. 
Gray    r.   Baldwin,    433,   657. 
Gray  r.  Baynard,     788. 


TABLE  OF  CASES  CITED. 


Hx 


THE    REFERENCES 

Gray  v-  Chaplin,   1207. 

Gray  i\  City    of    Brooltlyn.    1296. 

Gray  r.  First  Division  St.  P.  & 
P.    R.    Co.,    614. 

Gray  r.  Gray,    1390. 

Gray  f.  Matliias,    102. 

Gray  v.  McCance,    1508. 

Gray  v.  Russell,    959,    960,    963. 

Gray  r.  Viers,    1595. 

Great  Falls  v.  Worster,  118,  768. 

Great  Falls  Manufacturing  Co.  r. 
Henry's  Adm'r,   74. 

Great  Northern  R.  Co.  v.  Lanca- 
shire &  Y.   R.   Co,   587. 

Great  Northern  R.  Co.  c.  Man- 
chester  R.    Co.,   587. 

Great  R.  Co,  v.  Clarence  R.  Co., 
586,    679. 

Great  Western  R.  Co.  r.  Birming- 
ham R.  Co.,  9. 

Great  Western  R.  Co.  v.  Oxford 
R.    Co.,    15. 

Great  Western  R.  Co.  r.  Rushout, 
41,   1209,   1210. 

Greatrex  v.  Greatrex,  1348. 

Greedup  r.  Frank.in  Co.,  498,  501. 

Green  r.  Board    of    Trade,    1195. 

Green  r.  Grean,    1322,    1384,    1385. 

Green  r.  GrifHn,    1429,    1647. 

Green  c.  Haskell,    190. 

Green  v.  Huey,  1589. 

Green  r.  Keen,    643. 

Green  r.  Lake,   725,   752. 

Green  r.  Mills,    1325,    1668. 

Green  r.  Oakes,    780,    1322. 

Green  r.  Pallas,    1486. 

Green  r.  Philadelphia  F.  &  G. 
Co.,    1602. 

Green  r.  Pledger,    1110. 

Green  r.  Pulsford,  1481. 

Green  r.  Reagan,  1619. 

Green  Bay  &  M.  C.  Co.  v.  Kau- 
kauna    W.    P.    Co.,    835. 

Greencastle  r.  Hazelett,  767. 


ARE    TO    THE    PAGES. 

Greencastle  &  Bowling  Green 
Turnpike  Co.  r.  Albin,  531,  546. 

Greene  r.  Bishop,   941,  1016. 

Greene  v.  Haskell,    195. 

Greene  v.  Mumford,   444. 

Greenfield   v.   Hutton,   261. 

Greenhalgh  v.  Manchester  &  B. 
R.   Co.,   20,   579,   593,   1479. 

Greenhood    r.    MacDonald,    441. 

Greenin    r.   Hoey,    1509. 

Greenlee    v.   McDowell,   260. 

Greensburg  Company  v.  Sidener, 
524. 

Greenwade    v.    McCormack,    410. 

Greenwald    r.    Roberts,    326. 

Greenwich  Insurance  Co.  v.  Car- 
roll,   88. 

Greer    r.    Stewart,   1606. 

Greer   r.   Van   Meter,   828. 

Gregerson  v.   Imlay,   1092. 

Gregg    V.    Brower,    1348. 

Gregg  r.  Massachusetts  Medical 
Society,    1195. 

Gregg  r.  Sanfordi  350,  498,  499, 
502. 

Gregory  i;.  Diggs,   84. 

Gregory  r.  Hay,   394. 

Gregory  r.  Nelson,   838. 

Gregory  r,  Patchett,    1207. 

Gregory  v.  Stillwell,    1516. 

Greig    v.    Eastin,    1628. 

Gresham,  Assignee,  i\  Crossland, 
1406. 

Gridley  v.  Tucker,  154. 

Griffin  r.  Augusta  &  K.  R.  Co., 
619. 

Griffin  r.  Chadwick,   1625. 

Griffin  r.  State  Bank,  1510. 

Griffin  r.  Wallace,  1583. 

Griffin  r.  Winne,   691. 

Griffith  r.  Bronaugh,   1570. 

Griffith  r.  Clarke,  188. 

Griffith  r.  Hilliard.    662,    664,   688.  ■ 

Griffith  r.  Langsdale,   120. 

Griffith  l:  Reynolds,  195,  199,  1381. 


Ix 


TABLE   OF  CASES   CITED. 


THE    REFERENCES 

Griggs    i\   Docter,   119. 

Grissler   r.   Stuyvesant,   383. 

Griswold    o.    Brega,    713. 

Griswold  v.   Pelton,   529. 

Groff  V.  Mayor  of  Frederick  City, 

522. 
Gross  V.  Wieand,  8. 
Grove  v.  Bush,  1619. 
Grover   Co.    v.   Williams,   886. 
Groves  v.  Webber,  357. 
Grow   V.   Seligman,   1055. 
Grundy  v.  Young,  1617. 
Guess    V.    Amis,    222. 
Guidet    V.    Palmer,    889. 
Guillote  V.   Poincy,    1331,   1332. 
Gulf,     C.     &     F.     R.     Co.     0.     Fort 

Worth   &  N.   O.   R.   Co.,   1657. 
Gulf,  C.   &  S.   F.   R.   Co.    r.   King, 

194. 
Gulf,   C.   &   S.   F.   R.   Co.   V.   Raw- 
lins,   178,    222. 
Gulf  R.  Co.  V.  Blake,  454. 
Gulf   R.    Co.    r.    Commissioners   of 

Miami    Co.,    1299,    1300,    1301. 
Gulf  R.    Co.   V.   Morris,   454. 
Gulf    &    Ship    Island    R.    Co.    v. 

Town  of  Seminary,  1283. 
Gulick    V.    Fisher,    847,    848. 
Gullatt   i\    Thrasher,    1644. 
Gum-Elastic   R.    Co.   v.   Mexico   P. 

Co.,    177,   216,    217. 
Gunby  v.  Bell,  164. 
Gunby  v.  Brown,  1367. 
Gunby  v.  Thompson,  631. 
Gundlach  v.  Hamm,  563,  720,  725, 

792. 
Gunn  V.  Thornton,  249. 
Gustafson  r.  Hamm,  562,  780,  793. 
Gufshall    /;.    Salsberry,    158. 
Gufta  Percha  Co.  v.  Goodyear  Co., 

881. 
Gnttenberger  v.  Woods,  750. 
Guttery    w.    Glenn,    720,    725,    783, 

785. 
Gutwillig,  In  re,  283. 


ARE    TO    THE    PAGES. 

Gwaltney    v.    Gwaltney,    654. 

Gwin    V.    Melmoth,    705. 

Gyger     v.     Courtney,     1587,     1596, 

1633. 
Gyles  V.  Wilcox,  963. 

H 

H.  &  S.  R.  Co.  V.  C,  St.  P.  &  K.  C. 
R.  Co.,  586. 

H.  &  T.  C.  R.  Co.  V.  Presidio,  459. 

Haberman  Mfg.  Co.,  In  re,  1666. 

Hackensack  Improvement  Commis- 
sion V.  New  Jersey  Midland  R. 
Co.,  13,  20,  579. 

Hackney  v.  Vawter,  294. 

Hackwith  v.  Damron,  390. 

Hadfield  v.  Bartlett,  66,  336. 

Hadley  v.  Bank  of  Scotland,  1105. 

Hagaman  v.  Commissioners  of 
Cloud  Co.,  468,  471. 

Hagan  v.  Blindell,  18. 

Hagen  v.  Beth,  4. 

Hagenbuch  r.  Howard,  482. 

Hager  v.  Adams,  119. 

Hagerty  v.  Lee,  37. 

Hagg  0.  Darley,  1158,  1175. 

Haggariy  v.  Pittman,  1397,  1399. 

Haggerson  v.  Phillips,  412. 

Hagner  y.  Heyberger,  1328. 

Hahn  v.  Hart,  191. 

Haigh  V.  Jaggar,  695. 

Haight  l:  Day,  455,  1227. 

Haight  p.  Executors.  1337. 

Haight  V.  Lucia,  647. 

Haight  V.  Morris  Aqueduct,  809, 
832. 

Haines  v.  Carpenter,  82,  124. 

Haines  ;;.  Hall,  830. 

Haines  v.  Taylor,  708. 

Hair  Co.  v.  Huckins,  1093,  1094. 

Hairalson  v.  Carson,  1545. 

Halcomb  v.  Kelly,  232. 

Halcombe  r.  Commissioners,  1555. 

Halo  i\  Everett,  293,  294. 


TABLK   OF   CASES  CITED. 


Ixi 


THE    REFERENCES 

Hale  V.  McComas,  225. 

Hale  V.  Point  Pleasant  &  0.  R.  R. 

Co.,  614. 
Halff  V.  Green,  468. 
Hall  V.  Barrows,  1018,  1032. 
Hall  V.  Boyd,  255. 
Hall  V.  Clark,  379. 
Hall  y.  Davis,  240,  344. 
Hall  V.  Fisher,    101. 
Hall  V.  Hall,  1347. 
Hall  V.  Hickman,  234. 
Hall  c.  Hinckley,  325. 
Hall  V.  Holmes,  396. 
Hall  V.  Houston  &  T.  C.  R.  Co.,  444, 

478. 
Hall  f.  McPherson,  1546. 
Hall  V.  Rood,  37,  850. 
Hall  V.  Taylor,  146. 
Hall   i\  Williamson's  Adm'r,  1584, 

1587. 
Hallaran  v.  Donal,  1358. 
Hallenbeck  v.  Hahn,  444,  493,  498, 

503. 
Hallett  V.  Cumston,  1054. 
Halllway  v.  Phillipps,  649. 
Halloway  Bros.  v.  Hill,  1135. 
Halsey  v.  Brotherhood,  969. 
Ham  V.  Schuyler,  391. 
Hambrick  v.  Crawford,  210. 
Hambrick  v.  Dickey,  361. 
Hamer  v.  Kane,  49. 
Hamersley  v.  Wyckoff,  1540. 
Hamilton  v.  Amsden,  492. 
Hamilton  v.  Ball,  1103. 
Hamilton  v.  Dobbs,  95. 
Hamilton  v.  Dunsford,  1127. 
Hamilton  v.  Ely,  627. 
Hamilton  v.  Fond  du  Lac,  495. 
Hamilton  v.  Hendrix's  Heirs,  327. 
Hamilton  v.  New    York,  726. 
Hamilton  v.  Simons,  893. 
Hamilton  r.  Stewart,  397,  1610. 
Hamilton  v.  Village       of       Detroit, 

1313. 
Hamilton  v.  Whitridge,  749. 


ARE    TO    THE    PAGES. 

Hamilton  v.  Wood,  53,  1502,  1503. 
Hamilton-Brown   S.    Co.   t'.   Saxey, 

33,  1410,  1411,  1412,  1419. 
Hamlin   v.    N.    Y.,   N.    H.   &   H.   R. 

Co.,  1426. 
Hammerslough  v.  City  of  Kansas. 

555. 
Hammerslough  v.   Kansas  City  B. 

L.  &  S.  Association,  1633. 
Hammersmith   Co.   v.    Dublin    Co., 

968. 
Hammett  v.  Christie,  1502,  1.504. 
Hammond  v.  Winchester,  693. 
Hampson  (-.  Weare,  217. 
Handley  v.  Jackson,  222,  225. 
Hanford  v.  Blessing,  1640. 
Hanfstaengl  v.  Baines,  949. 
Hanfstaengl  r.  Empire  Palace,  949. 
Hankey  v.  Abrahams,  862. 
Hanley  v.  Wallace,  1578. 
Hanlon    o.    Supervisors    of    West- 
chester, 499. 
Hanly  v.  Watterson,  683. 
Hanna  v.  McKenzie,  1602. 
Hanna  v.  Morrow,  169,  172. 
Hannewinkle    v.    Georgetown,    440, 

443. 
Hannibal  &  St.  J.  R.  Co.   ;-.   Shep- 

ley,  1630. 
Hanson  v.  Gardiner,  682,  694. 
Hanson  r.  Johnson,  351,  352. 
Harber  v.  Evans,  323. 
Harbison  (?.  Burn,  818. 
Harbison  v.  Houghton,  110,  390. 
Harbottle  v.  Pooley,  1547. 
Harcourt  v.  Good,  539. 
Hardcastle  r.  Chittle,  1404. 
Harden  ii.  Garden,  172. 
Harding  v.  American  Glucose  Co., 

1204,    1208,   1224. 
Harding  r.  Commercial   Loan  Co., 

431. 
Harding  r.  Eichinger,  1326. 
Harding  r.  Hawkins,  169,  171,  212. 


Ixii 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Harding,  Ex'r  v.  Commercial  Loan 

Co.,  362. 
Hardinge  c.  Webster,  100. 
Hardy  c.  Broaddus,  141,  192,   346. 
Hardy  v.  Martin,  1120. 
Hare  l:  Carnall,  498. 
Hargrave  v.  Hargrave,  330. 
Hariug  r.  Kauffman,  25. 
Harington    r.   Senda.l,   1196. 
Harkinsou's  Appeal,  1180. 
Harkness     r.      Board      of     Public 

Works,  441,  500,  545. 
Harkrader  v.  Wadley,  86. 
Harlan  &  H.  Co.  v.  Paschall,  723. 
Harlem   Gas   Light    Co.    c.    Mayor, 

533. 
Harman  v.  Howe,  1581. 
Harman  v.  Jones,  13,  14. 
Harmon  c.  Ciiy     of     Omaha,     526, 

530. 
Harmon  r.  Dreher,  302. 
Harms  r.  Jacobs,  26,  667. 
Harner  r.  Price,  269. 
Harness  r.  Chesapeake  &  O.  C.  Co., 

602. 
Harney     r.     Indianapolis     R.     Co., 

1313. 
Harper  r.  Ranous,  1002. 
Harrell  r.  Hannum,  717. 
Harrington  v.  American  L.  L  &  T. 

Co.,  55. 
Harrington  v.  Chastel,  90. 
Harrington  v.  Du  Chatel.  90. 
Harrington  v.  Libby,   1048. 
Harrington  v.  McCarthy,    676,   677, 

679. 
Harrington  r.  St.  Paul  &  S.  C.  R. 

Co.,  614,  795. 
Harrington  v.    Town  of  Plainview, 

1299. 
Harris  r.  Pounds.  1232. 
Harris  r.  Pullman,  121. 
Harris  r.  Sangston,       1498.       1499, 

1562. 


ARE    TO    THE    PAGES. 

Harris  r.  Schryock,  1333. 

Harris  v.  Western    &    Atlantic  R. 

Co.,  1645. 
Harris   Drug   Co.    v.    Stucky,   1020, 

1021. 
Harrisburg   Ball    Club    v.    Athletic 

Association,  1097. 
Harrison  r.  Balfour,  1600. 
Harrison  v.  Board  of  Supervisors, 

553,    1576. 
Harrison  i\  Bray,  413. 
Harrison  v.  Ciiy  of  New  Orleans, 

1251. 
Harrison  v.  Gardner,  1166. 
Harrison  v.  Glucose  Sugar  R.  Co., 

27,    1149,   1150,    1158,   1159. 
Harrison  v.  Good,  751.  1140. 
Harrison  v.  Gurney,  114,  1526. 
Harrison  i\  Haas,  470. 
Harrison  v.  Seymour,  1377. 
Harrison  v.  Taylor,  1067,  1087. 
Harrison  v.  Vines,  483. 
Harrison  (;.  Yerby,  20,  1502,  1503. 
Harson  c.  Halkyard,  1036. 
Hart  r.  Buckner,  719,   780,   794. 
Hart  r.  Clark,  1507. 
Hart  V.  Hart,  1397. 
Hart  V.  Herwig,   1106. 
Hart  r.  Lazaron,    220,  221,   279. 
Hart  D.  Marshall,   43. 
Hart  r.  Mayor,    730. 
Hart  V.  Mayor  of  Albany,   12.  664, 

665. 
Hart  D.  Mills,    1653. 
Hart  v.  O'Rourke,   177,  216.   217. 
Harte  r.  DeWitt,  974. 
Hartford  B.  Co.  v.   East  Hartford, 

855,  869. 
Hartt  r.  Harvey,  1232. 
Hartlepool  Company  /•.  West  Har- 
tlepool Company,  1526. 
Hartman  v.  Heady,  104. 
Hartung,  In  re.  58. 
Hartwell  v.  Armstrong,  1335. 
Harvey  v.  Berry,   1591. 


TABLE  OF  CASES  CITED. 


Ixiii 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Harvey  r.  Hall,  1559. 

Hascall     v.     Madison     University, 

1099. 
Haskell  v.  Denver  T.  Co.,  582. 
Haskell  v.  Ingalls,    279. 
Haskell  v.  Thurston,  762. 
Haskell  v.  Wright,  1136,  1138. 
Hassan  v.  City  of  Rochester,  511. 
Hastings  v.  Cropper,   217. 
Hat  S.  M.  Co.  r.  Reinoehl,  879. 
Hatch   V.   Chicago,   R.    I.   &   P.   R. 

Co.,   1496. 
Hatch  V.  Daniels,  1498, 
Hatch   V.  Wallamet  I.  B.  Co.,  79ti, 

798. 
Hatcher  r.  Hampton,  669. 
Hatchett   v.   Mt.    Pleasant   Baptist 

Church,  304. 
Hatfield   v.   DeLong,  302. 
Haupt's  Appeal,  839. 
Hawarden   r.   Y.  &  L.    C.   Co.,   34, 

1415. 
Hawkinberry  r.  Snodgrass,  382. 
Hawkins  v.   Hunt,  52. 
Hawkins  v.     Ireland,  117,  118. 
Hawkins  t\  McDougal,    337. 
Hawkins  v.  State,  1433. 
Hawks  V.  Fellows,  1432. 
Hawley  v.  Beardsley,  703,  777. 
Hawley     v.     Bennett,     1429,    1461, 

1570. 
Hawley  r.  Clowes,  648,  656. 
Hay  r.  Weber,  725,  728. 
Hayden,  In  re,  284. 
Hayden  v.   Keith,  1593. 
Hayden   v.  Thrasher,  1502. 
Hayden  i\  Yale,  120. 
Haydon  r.  Goode,  159,  1368. 
Hayes   v.   Billings,    1487. 
Hayes'  Adm'r  v.  Hayes,  105. 
Haynes  v.   Bank,  73. 
Haynes  (7.  Doman,  1163. 
Hays,  Ex  parte,  23. 
Hays  V.  Dowis,  535. 
Hays  V.  Ford,  287. 


Hays  V.   Hill,  550. 

Hays  v.  Jones,  449,  590,  1236. 

Hays    v.   St.    Paul    M.   E.    Church, 

1138. 
Hays    V.    Ward,    117. 
Hayward  v.  Dimsdale,  83. 
Hayward  v.  Hayward,  969. 
Haywood  v.  Cape,  22. 
Hayzlett  v.  McMillan,   166. 
Hazel  i\  Sinex,  1380. 
Hazeltine  v.  Reusch,   135,  150. 
Hazelton    Boiler    Co.    v.    Hazelton 

Tripod  Boiler  Co.,  1058,  1059. 
Hazen  v.   Lyndonville   Bank,     117, 

118,  120. 
Hazlehurst  v.   Savannah,  G.   &  N. 

A.   R.  Co.,  49,  1222,   1226. 
Head  v.  James,  14,  501. 
Head    r.    Perry,    1618. 
Headley    r.    Bell,    135. 
Health  Department  v.  Purdon,  703. 
Healy  r.  Allen,  1092,  1103. 
Heaney  r.  Butte  &  M.  C.  Co.,  667, 

687. 
Hearn   v.   Tennant,   24,    1430,   1432, 

1433,   1463. 
Heath  v.  Bucknall,  82^. 
Heath    r.    Heath,    100. 
Heathcot  v.  Ravenscroft,  1363. 
Heathcote    v.    North    Staffordshire 

R.   Co.,  41,  42. 
Hebert   r.  Joly,  1542. 
Heck  V.  Vollmer,  1515. 
Hedges  v.  Meyers,  1611,  1638. 
Heeney  v.  Trustees,  312. 
Heffebower  r.  Buck,  1355,  1362. 
Heffran  v.   Hutchins,  1326,   1329. 
Hefner   r.   Hesse,   145. 
Heibron   r.   Canal  Co.,  829. 
Heilman  r.  L.  &  A.  S.  R.  Co.,  12. 
Heilman  r.  Union  C.  Co.,  26,  843. 
Heine  r.  Appleton,  948. 
Heinlein  v.  Cross,  1440,  1647. 
Heinroth     r.     Kochersperger,    517, 

549,    1484,   1655. 


Ixiv 


TABLK   OF  CASES  CITED. 


THE    REFERENCES 

Heinz  i:   Lutz,  1074. 

Heinze   v.   Butte   &   B.   C.    M.  Co., 

1663,   1664. 
Heller  v.  Atchison,  T.  &  S.  F.   R. 

Co.,  570,  1278. 
Helm  V.   Gilroy,   9,    1640. 
Hemiup,  In  the  matter  of,  48,  1539. 
Hemphill  v.  McKenna,  1479. 
Hemphill     v.     Ruckersville     Bank. 

196,  197,   1492,  1610. 
Hempstead  v.  Watkins,  135. 
Hemsley    o.   Bew,   705. 
Hemsley  v.  Myers,  86,  88. 
Henderson  ;;.  Hoy,  248,  403. 
Henderson  r.  Marcell,  1336. 
Henderson  r.  Maxwell,  1487. 
Henderson  v.  Morrill,  240,  344,  345. 
Henderson  v.  New     York     Central 

R.    Co.,    613. 
Henderson   r.  Ogden  C.  R.  Co.,   4, 

5,  679. 
Henderson  r.  Tompkins.  950. 
Hendricks  r.  Gilchrist.  448. 
Hendricks  v.   Hughes,   1478,   i486. 
Hendricks  v.  Montagu.  1056. 
Hendrickson  v.  Hinckley,  169,  232. 
Hendrix  v.  Southern  Ry.  Co.,  385. 
Henley  v.  Cliborne.  1609. 
Henry  v.  Elder.  1215. 
Henry  v.  Gregory.  482. 
Henry  v.  Steele,   1259. 
Henry  v.  Trustees,  757. 
Henry  v.  Watson,  1553,  1565. 
Hentig  v.  Sweet,  190,  199. 
Hentz  v.  Bank.    1555. 
Hentz  V.  Long  Island  R.  Co..  619, 

620,    792. 
Henwood  v.  Jarvis,  63. 
Henzel      r.     California     Electrical 

Works.  918. 
Hepburn  r.  Ix)rdan.  743. 
Herbert  i\  Pennsylvania  R.  Co.,  4. 
Hereford   r.  (Carpenter,  1445. 
Herman  r.  Roberts.  846. 
Hernandez  r.   .lames,  226. 


ARE    TO    THE    PAGES. 

Herr  v.  Bierbower,  678. 

Herr  v.  Central  Ky.  Asylum,  751. 

Herreshoff     v.      Boutineau,      1158, 

1162. 
Herrick's  Minors,  In  re,  1380. 
Herrman    v.   Beef    Slough    M.   Co., 

761, 
Hersey    v.    Supervisors,     467,     480, 

481,  514. 
Hervey  v.  Smith,  4,  756. 
Hesing   v.    Scott,   1312,    1316. 
Hess   V.  Winder.   320. 
Heston    r.    Canal    Commissioners, 

1337. 
Heth  V.  City  of  Fond  du  Lac,  773. 
Hetland  o.  County  Commissioners, 

1279. 
Hettrick   v.   Page,   43. 
Heussler  v.  Thomas,  352. 
Hevener  v.  McClung,  138. 
Hewett  V.   Feustmaker,   470. 
Hewett  V.  Norton,  273. 
Hewett  V.   Western  Union  T.  Co., 

707,   722,   789. 
Hewitt  V.  Kuhl.  100,  105,  236. 
Hext  V.  Gill,  698. 
Heyneman     v.     Dannenberg,     152, 

1401. 
Heyniger  v.  Hoffnung.  1549. 
Heywood  v.  Buffalo,  240.   441.  459. 

498.   499,   517. 
Hibbard  v.  Eastman.   186. 
Hibbard  v.  McKindley.  1621. 
Hibbs  V.  Chicago  &  S.  W.  R.  Co., 

606,  607. 
Hibernian    Benevolent    Society    v. 

Kelly,  445.  452. 
Hickerson  v.  Raiguel,  137. 
Hickey  v.  Stone,  222,  223,  1476, 
Hickok  V.   Hine,    798. 
Hicks  V.  Compton.   691. 
Hicks  V.  Knost,   283. 
Hicks  V.  Michael,   641. 
Hicks  V.  Raincock,    880. 
Hicks  V.  Silliman.    714. 


TABLE   OF  CASES  CITED. 


Ixv 


THE    REFERENCES 

Hier  f.  Abrahams,  1043,  1071. 

Higbee  v.  Camden  &  A.  R.  &  T. 
Co.,  13,  620,   725,  1507. 

Higgins  r.  Flemington  W.  Co.,  831. 

Higgins  r.  Higgins,  1391. 

Higgins  r.  Keuffel,  936,  945. 

Higgins  V.  Westerveit,  20. 

Higgins  i\  Woodwal-d,  627,  1515. 

Higgins  Co.  r.  Higgins  Soap  Co., 
1040,  1056. 

Higginson  v.  C,  B.  &  Q.  R.  Co., 
1645. 

High  Mfg.  Co.  V.  Grier,  407. 

Highland  A.  &  B.  R.  Co.  r.  Birm- 
ingham W.   Ry.   Co.,  20,  43. 

Hightower  r.  Mobile,  J.  &  K.  C.  R. 
Co.,    19. 

Hihn  V.   Peck,   656. 

Hilbish  t'.  Catherman,  1640. 

Hile   r.   Davison,  364. 

Hill  V.  Billingsly,  386,  391. 

Hill  v.  Bowie,  626. 

Hill  V.  Bowman,   1384,  1385. 

Hill  V.  Crowley,  2x6. 

Hill  V.  Garman,  1393. 

Hill  V.  Glasgow  R.  Co.,  1194. 

Hill  V.  Harris,    138,    183. 

Hill  V.  Hart  Davies,  969. 

Hill  V.  Hill,    1624. 

Hill  V.  Hoare,  392. 

Hill  r.  Jones,  1570. 

Hill  V.  Lockwood,    1060. 

Hill  V.  McBurney  0.  &  T.  Co.,  745, 
1548. 

Hill  V.  Mitchell,  1371. 

Hill  V.  Pierson,  725,  728. 

Hill  r.  Reifsnider,  229,  269. 

Hill  V.  Robertson,  423. 

Hill  v.  Shorey,  840. 

Hill  V.  Sledge,    1644,    1649. 

Hill  V.  Thomas.  1608,  1625,  1635. 

Hill  V.  Thompson,   887,   890,   908. 

Hill  V.  Turner,  63. 

Hill  V.  United  States.    156. 

Hilleary  r.  Crow,  243,  364,  365. 


ARE    TO    THE    PAGES. 

Hiller  v.  Collins,  1499. 

Hiller  v.  Gotten,  247,   1563. 

Hilles  v.  Parish,  1230. 

Hilliard  v.  Chew,  221. 

Hillman  y.  Hurley,  687. 

Hills  V.  Croll,  1149. 

Hills    V.    Growl,    1097. 

Hills  V.  Exchange  Bank,  487,  488. 

Hills  V.  Miller,  809,  810,  1124,  1136, 

1143. 
Hilson  Co.  r.  Foster,  1079. 
Hilton  V.  Granville,  20. 
Hinchman  v.   Paterson  H.   R.  Co., 

562,   725,   726,   730,   1532. 
Hinckley  v.  Haines,  349. 
Hinckley  r.  Miles,  196,  198. 
Hine  v.  Stephens,  265. 
Hines  v.  Beers,  169. 
Hines  v.  Munnerlyn,   431. 
Hines  v.  Rawson,  1452. 
Hinkle  r.  Margerum,    371,   377. 
Hinsdele,  In  re,  288. 
Hinson    i:   Brooks,   413. 
Hires  Co.  v.  Consumers'  Co.,  1049, 

1066. 
Hirsch  v.  Jonas,  1083. 
Hirst  V.  Denham,  1025,  1069. 
Hiss  V.  McCabe,   677. 
Hixon  V.  Oneida  County,  445,  450. 
Hoagland   v.   Delaware,   542. 
Hoagland  v.  Titus,  1502,  1504. 
Hoare  v.  Bremridge,  104,  105. 
Hobart  v.  Detroit,  533. 
Hobart  v.  Ford,  1640. 
Hobbs  V.  Amador  &  S.  C.  Co.,  697. 
Hobbs  V.  Duff,  238. 
Hobhouse  r.  Hamilton,  90. 
Hoboken  Ferry  Co.  v.  Baldwin,  43. 
Hockholzer  v.  Eager,  881.  909,  910, 

919. 
Hodge  V.  Giese,  853. 
Hodge  V.  Sloan,  1136,  1138. 
Hodges,  Ex  parte,  73. 
Hodges  V.  Baltimore  W.  P.  R.  Co., 

614. 


Ixvi 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Hodges  V.  McDuff,  1640. 
Hodges  V.  Planters    Bank,   236. 
Hodges  V.  S.  &  R.  R.  Co.,  602,  604, 

614. 
Hodges  V.  Welsh,  1015,  1016. 
Hodgkins  v.  Farrington,  676,  679. 
Hodgman   v.   Chicago  &   St.   P.   R. 

Co.,    1301,    1302.    1313. 
Hodgson  V.  Earl  of  Powis,  583. 
Hodgson  {-.  Murray,  1112. 
Hodson  V.  Coppard,  1450. 
Hodson  i>.  Eugene  Glass  Co.,  1108, 

1109. 
Hoey  V.  Coleman,  46,  441. 
Hoff  V.   Olson,    483. 
Hoffelmann  v.  Franke,  1610. 
Hoffman  v.  Board  of  Commission- 
ers, 1279. 
Hoffman  v.  Kuhn,  812. 
Hoffman  v.  Livingston,   1567. 
Hoffman  v.  Shupp.  188. 
Hogencamp  v.  Paterson  H.  R.  Co., 

730,   731. 
Hogg  V.   Kirby,  968,  1051. 
Hogg  i\  Scott,  976,  984. 
Holbert  i:  St.  Louis,  K.  C.  &  N.  R. 

Co.,  619. 
Holden  v.  City  of  Alton,  1237,  1268, 

1269. 
Holden's    Administrators     r.     Mc- 

Makin,  1364. 
Holderstaffe  v.  Saunders,  86,  262. 
Holdredge  v.  Gwynne,  50,  152,  1397, 

1552. 
Hole  V.  Thomas,  650,  651,  656. 
Holland,  In  re,  274. 
Holland  r.  Mayor,  495,  511,  526,  530. 
Holland  r.  Trotter,  199,  200. 
Hollenbeak  v.   McCoy,   176. 
Holliday's  Ex'rs  v.  Myers,  1578. 
HoUinger  v.  Reeme,  136. 
Tlollingsworlh   r.   Trueblood,   347. 
Hollis   r.   Shaffer,   1181. 
HolllK  /■.  Willianis.  1649,  1653. 
HoUister  v.  Barkley,  1498. 


ARE    TO    THE    PAGES. 

HoHoway  v.   Holloway,  1041,  1050, 

1633. 
Holmes  v.  Jersey  City,  558. 
Holmes   v.   Oldham,    1260.    ' 
Holmes  v.  Stateler,  139,  1611. 
Holmes   v.   Steele,   183. 
Holsman  i\  Boiling  Spring  Bleach- 
ing Co.,  763,   765,  766. 
Holstein  v.  County  Board,  128. 
Holt    v.    Bank    of    Augusta,    1474, 

1502. 
Holt   r.   Corporation    of   Rochdale„ 

774. 
Holt's  Ex'rs  v.   Graham,  212. 
Holthaus  V.  Hornbostle,  1384,  1385. 
Holzapfel's     Composition     Co.     f. 

Rahtjen's  Composition  Co.,  1045,, 

1046,  1080. 
Home  &   Colonial  Stores  r.   Colls, 

4,  817,  820. 
Home  E.  L.  &  P.  Co.   i\  Globe  T. 

P.  Co.,  1645. 
Home  Insurance  Co.  r.  Howell,  128. 
Home  Life  Ins.  Co.  r.  Selig,  102. 
Home  Savings  &  T.  Co.  i\  Hicks, 

86,  100. 
Hone  f.  Moody,  1542. 
Hood   V.  Aston,   1110,   1354. 
Hoofman  v.  Marshall,  1627. 
Hooker  r.  Austin,  411,  1483,  1518. 
Hooper  v.   Broderick,  1147. 
Hooper  i\  Cooke,  74. 
Hooper  v.  Dora  C.  M.  Co.,  662,  672. 
Hoover  v.  M'Chesney,  1339. 
Hopkins  v.   Chaddick,  683. 
Hopkins  r.  Cravey.  552. 
Hopkins  v.   Greensburg  Company, 

524. 
Hopkins  v.  Keller,  555. 
Hopkins  i\  Medey,  176. 
Hopkins  v.  Oxley  Stave  Co.,   1410, 

1412,  1415. 
Hopkins  /■.  United  States,  1186. 
Hopkins  Amusement  Co.   r.  Froh- 

man,  1053,   1543. 


TABLE  OF  CASES  CITED. 


Ixvii 


THE    REFERENCES 

Hopner  v.  Brodripp,  1155. 

Hord  V.  Trimble,  1588,  1620. 

Horn  V.  Garry,  499. 

Horn  V.  Kilkenny,  66.         ^ 

Horn   V.  Perry,  1571. 

Horn  V.  Queen,  188. 

Horner  v.  Jobs,  110. 

Horner  v.  Marshall's  Adm'x,  187. 

Horner  t\  Popham,  652. 

Hornesby  v.  Burdell,  45,  1548. 

Hornor  v.   Leeds,  55,  1559. 

Horsky  v.  Helena  C.  W.  Co.,  1099, 
1106. 

Horton  v.  Hoyt,  552,  590,  602. 

Horton  v.  White,  337. 

Hosmer  v.  Campbell,  1623,  1624. 

Hospers  v.  Wyatt,  1238. 

Hostetter  v.  Fries,  1021. 

Hostetter  v.  Vowinkle,  1033,  1034. 

Hostetter  Co.  v.  Becker,  1063. 

Hostetter  Co.  i\  Brueggeman  Dis- 
tilling Co.,  1064. 

Hotchkiss  V.  Piatt,  1592,  1614,  1616, 
1632,  1636. 

Hotten  V.  Arthur,  960. 

Hotz  V.  Hoyt,  716. 

Houchens  v.  Houchens,  1079. 

Hougan  r.  Milwaukee  &  St.  P.  R. 
Co.,   837. 

Hough  V.  Chaffin,  85,  1352. 

Houghton  V.  Austin,  444,  458. 

Houston  V.  Hurley's  Adm'rs,  361. 

Hovey  v.  McDonald,  1647,  1657. 

Hovey  v.  Rubber  Tip  Pencil  Co.. 
1632. 

Hovey  v.  Stevens,  906. 

Howard  i).  Bennett,  1521. 

Howard  -v.  Durand,  1448. 

Howard  v.  Hopkyns,  1120. 

Howard  v.  Lee,    735. 

Howard  v.  Parker,  1344. 

Howard  r.  Randolph,  1500. 

Howard  v.  Simmons,  257,  1554. 

Howard  i\  Woodward,  1177. 

Howe  V.  Howe  Machine  Co.,  1084. 


ARE    TO    THE    PAGES. 

Howe  V.  Morton,    882,    907,   913. 

Howe  D.  Norman,   829. 

Howe  r.  Rochester  I.  M.  Co.,  695. 

Howe  V.  School  District,  312. 

Howe  r.  West  End  R.  Co.,  564. 

Howe  V.  Willard,  24,   1432,  1433. 

Howell  r.  Chicago  &  N.  W.  R, 
Co.,   1192. 

Howell  V.  City  of  Peoria,  511. 

Howell  V.  City  of  Tacoma,  472. 

Howell  V.  Miller,    963. 

Howell  V.  Motes,  182. 

Howell  v.  Robb,  1565. 

Howell  V.  Thomason,  146,  167. 

Howell  Co.  V.  Pope  Glucose  Co., 
810,   830,   841. 

Hower  v.  Weiss  M.  &  E.  Co.,  1202. 

Howes  V.  Howes,  151Z,  1564. 

Howes   V.  Racine,   467. 

Hoxsie  -v.   Hoxsie,  829. 

Hoyt  V.  Gelston,  1519,  1657.  1658. 

Hoyt  V.  J.  T.  Lovett  Co.,   1023. 

Hoyt  V.   Mackenzie,   966. 

Hubbard  v.  Hobson,  167,  212. 

Hubbard  v.  Hubbard,  1403. 

Hubbard  v.  Jasinski,  112,  410. 

Hubbard  r.  Martin,  207. 

Hubbard  r.  Miller,  1157,  1166. 

Huber  v.  Myers  Sanitary  Depot, 
919. 

Huck  V.  Chicago  &  Alton  R.  Co., 
444,  508. 

Hudson  v.  Commissioners  of  At- 
chison Co.,   546. 

Hudson  r.  Kline,    234,    235. 

Hudson  r.  Maddison,  758.  1571. 

Hudson  V.  Mayor,    1237,    1276. 

Hudson  V.   Plets,  1442,  1443. 

Hudson  V.  Schwab,    281. 

Hudson  River  T.  Co.  r.  Watervllet, 
T.  &  R.  Co.,  576,   1642. 

Huebschman  i\  Baker,  149. 

Huels  V.  Hahn.  1326. 

Huff  r.  Markham,  396. 

Huffman  r.  Hummer,  1486. 


Ixviii 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Hugg  V.  City  of  Camden,  1281. 

Hughes  V.  D'Arcy,  330. 

Hughes  V.  Hughes   Adm'r,  1589. 

Hughes  r.  Kline,  459. 

Hughes  i\  McCoun,  232. 

Hughes  V.  M.   El.  R.  Co.,  564. 

Hughes   v.   Worley,   420. 

Hughes'  Adm'r  c  Wickliffe,  1601. 

Hughlett  r.   Harris,   632,  633. 

Hulett  V.  Inlow,  1386. 

Huling  V.  Ehrich,  463,  464. 

Hull  V.   Ely,   1317. 

Hull  V.  Thomas,  24,  1432,  1433. 

Hulley  r.  Security  T.  &  S.  D.  Co., 

827. 
Hullhorst  V.   Scharner,  1108. 
Hulme  r.  Shreve,  809,  832. 
Humboldt    D.     P.     Association     v. 

Stevens,   1232. 
Humfeldt  v.  Moles,  1598. 
Humiston  v.   Stainthorp,  927. 
Hummert  v.  Schwab,  1484,  1547. 
Humphreys   v.   Harrison,   435,   657, 

658. 
Humphreys  v.  Humphreys,  1554. 
Humpnreys  v.  Hurtt,  1098. 
Humphreys  v.  Leggett,  204. 
Humphreys  i\  Neison,  448. 
Hundley  v.  Harrison,  704,  744. 
Hunnewell  r.   Cass  County,   507. 
Hunt,  In  re,  278. 
Hunt  V.  Browne,  634,  645. 
Hunt  V.  Burton,    1586. 
Hunt  V.  Hunt,    1393. 
Hunt  V.  Peake,  675,  812. 
Hunt  V.  Sain,  4. 
Hunt  V.  Scobie,    1578. 
Hunt  V.  Steese,  637. 
Hunter  v.  Moore,  876. 
Hunter  v.  Nockolds,   1526. 
Hunter's  Appeal,  1389. 
Huntington  v.   Central   P.   R.   Co., 

498. 
Huntington  r.  Crouter,  214. 
Huntington  r.  Palmer,  468. 


Huntington  &  K.  L.   D.  Co.  v.   P. 

P.   Mfg.    Co.,   718. 
Huntley,  In  re,  1441. 
Hurd  i\  Eaton,  244,  330. 
Hurd  i\   Waters,   1282. 
Hurlburt  v.  Banks,  1310,  1311. 
Hurlbut  V.  Thomas,  224. 
Hurley    v.    Levee    Commissioners, 

1333. 
Huron  Waterworks  Co.   v.  City  of 

Huron,   1502,   1503. 
Hursen  v.  Gavin,  1157,  1159. 
Huskins  v.  McElroy,  1487. 
Hussey  v.  Gallagher,    1232. 
Hussey  i:  Whiteley,  886. 
Hutaff  V.  Adrian,  415. 
Hutchins  v.  Hope,  1486,  1492. 
Hutchins  v.  Smith,  735,  736. 
Hutchinson  r.  Biumberg,  1078. 
Hutchinson  r.  City  of  Omaha,  530. 
Hutchinson  r.  Green,  124. 
Hutchinson  v.  Hutchinson's  Ex'rs, 

96. 
Hutchinson  v.   New   York   Central 

Mills,   1406. 
Hutchinson  v.  Thompson,  797. 
Hutchison  v.  Johnson,  424. 
Hutton  r.  Scarborough  Cliff  Hotel 

Co.,  1221,  1223. 
Hyatt  r.  Bates,  1324. 
Hyde  r.  Bancroft,  284. 
Hyde  r.  Ellery,  1396,  1397. 
Hygeia  D.   W.    Co.    r.    Hygeia   Ice 

Co.,    1043. 
Hygeia    M.    S.    Co.    v.    Village    of 

Waukesha,  781,  1531,  1532. 
Hygeia  Water  Ice  Co.    r.  N.  H.  I. 

Co.,  1058. 
Hyland    r.    Brazil    B.    C.    Co.,    472, 

485. 
Hyland  r.   C.   I.    &   S.   S.   Co.,   468. 

485. 
Hyland  A.  &  B.  R.  Co.  r.  Birming- 
ham Ry.  &  E.  Co.,  1565. 


TABLE  OF  CASES  CITED. 


IxLx 


THE    REFERENCES 

Hyman   r.   Kelly,  423. 
Hyser   r.   Mansfield,  402. 


Iglehart  r.  Lee,  212. 

Her  (,-.  Colson,  468,  472. 

Illingworth  r.  Spaulding,  883. 

Illinois  r.  Cook,  1194. 

Illinois  Central  R.  Co.   v.  Caffrey, 

bOO. 
Illinois   Central   R.   Co.   r.  City  of 

Chicago,  50,  102. 
Illinois   Central   R.   Co.   r.   County 

of  McLean,   446,   504,   505. 
Illinois  Central  R.  Co.  r.  Garrison, 

19,  83. 
Illinois  Central  R.  Co.  v.  Hodges, 

460,    504,    505. 
Illinois  Company  v.  St.  Louis,  725, 

728. 
Imboden  v.  Etowah  &  B.  B.  M.  Co., 

837. 
Imlay    r.    Norwich    &    W.    R.    Co., 

930. 
Imperial  Co.  v.  Broadbent,  705,  735, 

736. 
Imperial  Gas  Light  Co.  r.  Clarke, 

1446. 
Improved  Fig  Syrup  Co.  r.  Califor- 
nia Fig  Syrup  Co.,  1080. 
Incas  L-.  Bank,  258. 
Inchbald  r.  Barrington,  745. 
Inchbald  v.  Robinson,  745. 
Indian  R.    S.   Co.   i:   E.   C.  T.  Co., 

1483. 
Indiana  Mfg.   Co.   v.   Koehne,   441, 

466. 
Indiana  Miller   r.    Board   of   Com- 
missioners, 1276. 
Indianapolis  v.  Gilmore,  494. 
Indianapolis    Gas    Co.    v.    City    of 

Indianapolis,  20. 
Indianapolis  N.  G.  Co.   r.  Kibbey, 

663,   674. 


ARE    TO    THE    PAGES. 

Indianapolis  Water  Co.  r.  Ameri- 
can Strawboard  Co.,  763. 

Inge  V.  Board  of  Public  Works, 
1238,   1268,   1269. 

Ingles  c.  Straus,  1476,  1477,  1513, 
1653. 

Ingraham  v.  Bunnell,  400,  823. 

Ingram  v.  Morecraft,  1118,  1119. 

Ingram  r.  Morgan,  360,  361,  371. 

Ingram  v.  Stiff,  987. 

Inhabitants  of  Greenville  r.  Sey- 
mour,  1285,  1287. 

Inhabitants  of  Needham  r.  N.  Y. 
&  N.   B.   R.   R.  Co.,   1531. 

Inhabitants  of  Raritan  r.  P.  R.  R. 
Co.,   724. 

Inhabitants  of  Winthrop  r.  New 
England    C.    Co.,    1531. 

Innes  v.  Stewart,  416. 

Insurance  Co.   r.  Bouner,  441,   169. 

Insurance  Co.  c.  Brune's  Assignee, 
67. 

International  Committee  of  Y.  W. 
C.   A.   V.   Y.   W.   C.   A.,  1025. 

International  &  G.  N.  R.  Co.  v. 
Smith   County,   504. 

International  Postal  S.  Co.  v. 
Bruce,   923. 

Inter-Ocean  Co.  v.  Associated 
Press,    1202. 

Investor  Publishing  Co.  v.  Dobin- 
son,    1056.    1057. 

lolanthe  Case,  1011. 

Ionia,  etc.  Insurance  Co.  v.  Davis, 
23. 

Iowa  Railroad  Land  Co.  v.  Carroll 
County,   444,   452. 

Iowa  Railroad  Land  Co.  v.  County 

of   Sac,  444,   452. 

Ireland  v.  Kelly,  1499,  1513. 
Irick  V.  Black,  1378,   1502. 
Irish,  l7i  re.  1180. 
Iron  Age  Publishing  Co.  v.  W.  W. 
T.  Co.,  1092,  1095,  1097,   1149. 


Ixx 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Iron  Mountain  Bank  v.  Mercantile 

Bank,  1593. 
Iron   Mountain  Co.,  In  re,  285. 
Iron   Mountain   R.    Co.    v.   City   of 

Memphis,  125. 
Irvin  t".  New  Orleans,  St.  L.  &  C. 

R.  Co.,  496. 
Irvin  V.  Railroad  Co.,  479,  490. 
Irving,  In  re,  274. 
Irving  r.  Hughes,  273,  274. 
Irwin  c.  Dane,  879. 
Irwin  i\  Davidson,    695. 
Irwin  V.  Dixon,  702. 
Irwin  /■.  Great  S.  T.  &  T.  Co..  48. 
Irwin  r.  Lewis,    47,   349,   402. 
Isaac  V.  Humpage,  1547. 
Isaacs  r.  Cooper,   887. 
Isaacs   V.   Daly,  1002. 
Isam   r.   Hooks,   1644. 
Isenberg  c.  East  India  H.   E.  Co., 

5.  6. 
Israel  c.  Wolf,   103. 
Ives    '•.    Irey,   531. 
Iveson   r.  Harris,  1448,  1526. 


J.  V.   S.,  1359. 

Jacks    '■.    Bigham,   144. 

Jackson  r.  Andrews,  85. 

Jackson  v.  Arnold,  1570. 

Jackson  r.  Barnard,  1554. 

Jackson  c.  Bunnell,  1557. 

Jackson  r.  Cator,  643. 

Jackson  r.  Darcy.  65,  1500. 

Jackson  r.  Detroit,  444,  524. 

Jackson  /■.  Duke  of  Newcastle,  820. 

Jackson  v.  Jackson,  1507. 

Jackson  r.  Jones,  1509. 

Jackson  r.  Leaf,  70. 

Jackson  r.  Normanby  Brick  Co.,  5. 

Jackson  r.  Norton,  377. 

Jackson  r.  Rainey,  1387. 

Jackson  r.  Snell,  348. 

Jackson  r.  Stevenson,  1137,  1143. 


ARE    TO    THE    PAGES. 

Jackson  &  S.   Co.   r.  Philadelphia, 

W.  &  B.  R.  Co.,  1559. 
Jacksonport  v.  Watson,  1238. 
Jacob  V.  Hall,  1546. 
Jacobs  V.  Miller,  1608. 
Jacobson  v.  Boening,  772. 
Jacobson  r.  Metzgar,  100. 
Jacomb  v.  Knight,  824. 
Jacox  V.  Clark,  842. 
Jaedicke  v.  Patrie,  162. 
Jager  v.  Doherty,  1310. 
James  v.  Breaux,    422. 
James  v.  Downes,   1430,   1463. 
James  v.  James,  1037,  1045. 
James  v.  Lenily,  1504. 
James  v.  Markham,  1657. 
James  r.  Norris,    1505. 
James  v.  Roberts,  1108. 
James  v.  Withers,  1575. 
James  River  Co.  r.  Anderson,  1188. 
Jameson  v.  Bartlett.  1635. 
Jameson    r.    Dublin   Distillers   Co., 

1028,    1037,    1041,    1071,    1072. 
Jamison  v.   Dulaney,  1634. 
Jarden    r.    Philadelphia,   W.    &   B. 

R.  Co.,  582. 
Jarret  r.  Goodnow,  237. 
Jarrold  /;.  Heywood,  962. 
Jarrold  r.  Houlston,  960,  986. 
Jarvis  v.  Chandler,  69. 
Jarvis  r.  Henwood,  6. 
Jarvis  v.  Peck,    27. 
Jarvis  /;.  Town  of  Grafton,    552. 
Jay  v.  Michael,  846. 
Jay  V.  Richardson,  1135. 
Jay's  Case,  91. 
Jaynes  v.   Brock,   374,   375. 
Jefferson  r.  Bishop  of  Durham,  625. 
Jefferson  r.  Hamilton.  1545. 
Jefferson  r.  Markert,  1163,  1179. 
Jeffersonville  r.  Patterson,  441. 
Jenkins  r.  Baxter,  1232. 
Jenkins  v.  Felton,  1476. 
Jenkins  r.  Greenwald.  921. 
Jenkins  v.  Rock  Co.,  500. 


TABLE  OF  CASES  CITED. 


Ixxi 


THE    REFERENCES 

Jenkins  v.  Waller,  1502. 

Jenks    r.   Ludden,   1407. 

Jenks  r.  Williams,  827. 

Jennings  v.  Beale,  49. 

Jensen   v.  Norton,  9,  1668. 

Jerome  r.  Ross,  681,  682,  694. 

Jersey  City   r.  Fitzpatrick,  1295. 

Jersey  City  G.  Co.   i'.   Consumers' 
G.  Co.,  864. 

Jersey  City  Printing  Co.   r.  Cassi- 
dy,   1410,   1412,    1413,   1414. 

Jervis   v.  White,  1354. 

Jessup  &  Moore  Paper  Co.  v.  Ford, 
701,  763. 

Jessup  Paper  Co.  v.  Ford,  1442. 
Jesus  College  v.  Bloom,  638,  639. 

Jeter    r.   Langhorn,   1617. 

Jevne  v.  Osgood,  1636. 

Jewett  V.  Bowman,  1443,  1457,  1510. 

Jewett  V.  Dringer,  1494. 

Jewett  V.  Sweet,   715. 

Jillett    V.    Union    National    Bank, 

211. 
Johnson  v.  Aldricn,  884. 
Johnson  v.  Alexander,  1483. 
Johnson  v.   Bauer,  1049. 
Johnson   v.   Board     of     Education 

1653. 
Johnson  v.  Bouton,  1595. 
Johnson  v.  Brett,  548. 
Johnson  r.  City  of  Milwaukee.  498, 

501. 
Johnson  v.  City  of  Rochester,  671. 
Johnson  v.  Connecticut  Bank,  158. 
Johnson  r.  Elwood,  1598. 
Johnson  r.  Farnum,  1397. 
Johnson  v.  Gere,    366. 
Johnson  v.  Griffin      Banking     and 

Trust  Co.,   402,   403. 
Johnson  v.  Hahn,   493,   498,   503. 
Johnson  r.  Hall,    10,    1576. 
Johnson  r.  Huber,  194. 
Johnson  r.  Johnson,  1390,  1391. 
Johnson  r.  Jones,  1373. 
Johnson  r.  Kitch,  157. 


ARE    TO    THE    PAGES. 

Johnson  v.  La  Variete  Association, 
1217. 

Johnson  r.  Roberts,    448. 

Johnson  v.  S.  B.  &  L.  Assn.,  1483. 

Johnson  v.  Sanitary  District,  1245, 
1262. 

Johnson  v.   Shrewsbury    &    B.    R. 
Co.,   1098,  1148. 

Johnson  v.  Vail,  1384,  1385. 

Johnson  r.  Vaughan,    1578. 

Johnson  i:.  Woodruff,  321. 

Johnson  /-.  Wyatt,  751. 

Johnston  r.  Alexander,   1514,  1515. 

Johnston  r.  C,  M.  &  St.  P.  R.  Co., 
1502. 

Johnston  c.  Corey,  1478. 

Johnston  r.  County    of    Sacramen- 
to,  1289. 

Johnston  r.  Glenn,  397. 

Johnston  v.  Hyde,   684,   839. 

Johnston  c.  Jones,   1232,    1233. 
Johnston  r.  Young,  68. 

Johnston   Co.  v.   Hunt,    1154. 
Johnston    Harvester    Co.    «.    Mein- 

hardt,  1417,  1420. 
Johnstone   v.  Eisenbeis,  1640. 
Johnstone  v.    Hall,   1122. 
Johnstown    C.    M.    Co.    v.    Veghte, 

839. 
Jollie  V.  Jaques,  936,  938,  939,  1012. 
Jonas  r.  Cincinnati,  442. 
Jones  i:  Allen,  1583,  1587. 
Jones  V.  Bennett,   95,    265. 
Jones  v.  Black,  1333. 
Jones  r.  Brandon,  329,  1505. 
Jones  r.  Britton,  647. 
Jones  V.  Cameron,  169. 
Jones  V.  Cardwell,  1533. 
Jones  r.  Coker,  184. 
Jones  r.  Commercial  Bank,  1475. 
Jones  r.  Commissioners    of    Gran- 
ville, 1326. 
Jones  V.  Davis,  478. 
Jones  r.  Edwards,  1481. 


Ixxii 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Jones  V.  Frosh,  264. 

Jones  V.  Garcia  del  Rio,  1571. 

Jones  V.  Geddes,  116. 

Jones  V.  Heavens,  1179. 

Jones  V.  Hodges,  919. 

Jones  V.  Hui'iburt,  1301. 

Jones  V.  Jones,  231,  1100,  1644. 

Jones  V.  Little  Rock,  1312. 

Jones  V.  Macon   &    B.    R.    Co.,    50, 

51,  1552. 
Jones  V.  Magill,    1546,    1564. 
Jones  V.  Oemier,  33. 
Jones  V.  Ramsey,  74. 
Jones  r.  Reed,  1239. 
Jones  V.  Rosedale  S.  R.  Co.,  1630. 
Jones  V.  Stallsworth,  101. 
Jones  V.  Thacher,  141,  1645. 
Jones  V.  Williams,  1095,  1097,  1146. 
Jones  Co.  v.  Hunger  Improved  C. 

M.  Co.,  1668,  1669,  1670. 
Joplin    &    W.    R.    Co.    V.    K.    C, 

F.  S.  &  M.  R.  Co.,  1660. 
Jordan  v.  Lanier,  667,  668. 
Jordan  r.  Volkenning,  1590. 
Jordan's  Adm'x  r.  Williams,  153. 
Joseph  V.  Burk,  33,  86,  164. 
Joseph  r.  Doubleday,  1518. 
Joseph  V.  Macow^sky,  1079. 
Joseph  V.  McGill,  318,  1401. 
Joslyn  r.  Dickerson,  1618,  1629. 
Joyce  V.  Barron,  530. 
Judah  V.  Chiles,  1476. 
Judd  V.  Hatch,  402,  1486. 
Judd  r.  Town  of  Fox  Lake,  520. 
Judson  V.  Porter,   252. 
Judson  V.  Smith,  1341. 
Ju'ian    V.   Central   Trust   Co.,   125, 

256. 
.Tulian  v.  Hoosier  D.  Co.,  1043,  1089. 
Jung  V.  Neraz,  736,  757. 
Justice  V.  Scott,  96. 
Justices  V.   Griffin  &  W.  P.   P.  R. 

Co..  865. 


ARE    TO    THE    PAGES. 

K 

Kaehler  r.  Dobberpuhl,  1427. 

Kaehler  v.   Halpin,  1427. 

Kahn  v.  Kerngood,  1502. 

Kaighn  v.  Fuller,  1499. 

Kaime  v.   Harty,   1291. 

Kamm   c.    Stark,   248. 

Kane  v.  Casgrain,  1597. 

Kane  v.  Huggins  Cracker  Co.,  885, 

912. 
Kane  r.  Vand^rburg,  641. 
Kann  v.  Diamond  Steel  Co.,  1072. 
Kansas  City,  F.  S.  &  G.  R.  Co.  v, 

Tontz,  444. 
Karrer  r.  Berry,  788. 
Kathreiner's     Maltzkaffe,     etc.     v. 

Pastor  Kneipp  M.  Co.,  1018. 
Katz  V.  Moore,  191,  287. 
Kaufman  v.   Stein,   713. 
Kavanagh   ;:.  Mobile  &  G.  R.   Co., 

738. 
Kay   V.   Kirk,   829. 
Kean  r.  Asch,  850. 
Kean  r.  Colt,  11,  1548. 
Kean  r.  Johnson,  1194,  1204,  1208. 
Keane  r.  Chamberlain,  123. 
Keane  r.  Wheatley,  934. 
Kearney  r.  Andrews,  1251. 
Keath  i\  Key,  1377. 
Keaton  v.  Baggs,  321. 
Keber  r.  Mercantile  Bank,  1593. 
Keel  V.  Bently,  1653. 
Keeler  r.  White,  1576. 
Keeling  v.  P.,  V.  &  C.  R.  Co.,  12. 
Keen  r.  Mayor,  1237,  1243. 
Keene  v.  Bristol,  554. 
Keene  r.  Clarke,  992,  994,  995,  996, 

999. 
Keene  r.  Kimball,  993,  999. 
Keene   v.  Wheatley,   991,  992,   994, 

996,  999,  1008. 
Keep   r.  Michigan  Lake  Shore  R. 

Co.,   423. 


TABLE  OF  CASES  CITED. 


Ixxiii 


THE    REFERENCES 

Kehler  v.  The  Jack  Manufacturing 

Co.,  1560. 
Keigwin   c.   Drainage  Commission- 
ers, 444. 
Keller,  In  re,  289. 
Reiser   v.   Lovett,    705. 
Keith  V.  Harris,   142. 
Keith    V.    Henkleman,    1586,    1594, 

1612,   1629,  1631. 
Keith    V.    Wilson,    150. 
Kekewich  v.  Marker,  657. 
Kelk  V.  Pearson,  817,  820. 
Kellar  v.  Bullington,  663,  667. 
Keller  v.  Goodrich  Co.,  1048,  1050. 
Kelley  r.  Briggs,  1502. 
Kelley  v.  Krless,  190,  196. 
Kelley  v.  Saltmarsh,  851. 
Kelley  v.  Whltmore,  1483. 
Kelley  v.  Ypsilanti    Mfg.   Co.,    891, 

892,    970. 
Kellogg  i:  Ely,  524. 
Kellogg  r.  King,  47,  673. 
Kellogg  V.  Oshkosh,  441,  444,  447. 
Kellogg  V.  Russell,  281. 
Kelly  V.  Carter,  1136. 
Kelly  V.  Herb,   1397. 
Kelly  V.  Hooper,  942,   944. 
Kelly  V.  Mariposa    L.    &    M.    Co., 

1205. 
Kelly  V.  Mayor,  1245. 
Kelly  V.  Morris,  21,  942,  943,  975. 
Kelly  V.  Robb,  688. 
Kelly  V.  Wiard,  190. 
Kelsey   v.    King,    1245,    1248,    1249, 

1295. 
Kelsey  v.  Wayne  Circuit  Judge,  23. 
Kemble  r.   Kean,   1096,   1149. 
Kemp  V.  Bird,   1134,  1135. 
Kemp  V.  Sober,  1127. 
Kemp  V.  Tucker,  102. 
Kempson  v.  Kempson,  1394,    1395, 

1432,  1462. 
Kenan  v.  Johnson,  1394. 
Kendall  v.  Dow,  247. 


ARE    TO    THE    PAGES. 

Kendall  v.  Missisquoi  &   C.   R.  R. 

Co.,  606. 
Kendall  v.  Winsor,  253. 
Kennedy  v.  City  of  Troy,  513,  546, 
Kennedy  v.  Earl  of  Cassillis,  114, 
Kennedy  v.  Lee,  1164. 
Kennedy  v.   Montgomery  Co.,   451,. 

1238. 
Kennedy  v.  Scovil,  770. 
Kennedy's    Admr'x    v.    Hammond, 

1622. 
Kennerty   v.    Etiwan    P.    Co.,    702, 

718. 
Kenny  v.  Gillet,  1071,  1079. 
Kenopsky  v.  Davis,  746. 
Kensit   v.    Great    Eastern    R.    Co., 

772. 
Kent  V.  Bierce,  1580. 
Kent  V.  De  Baun,  97. 
Kent  V.  Jackson,  1207. 
Kent  V.  Mehaffy,   56. 
Kent  V.  Quicksilver  M.   Co.,  1223. 
Kent  V.  Ricards,  190,  199,  1510. 
Kentucky    Heating    Co.    r.    Louis- 
ville Gas  Co.,  1444,  1460. 
Kentucky  &  I.  B.  Co.  v.   Krieger, 

1647. 
Kentucky    U.    R.    Co,    v.    Bourbon 

County,    1302. 
Kenyon  v.  Clarke,   142. 
Keppel  V.  L.  C.  &  N.  Co.,  770. 
Kerlin  r.  West,  645. 
Kern  i\  Strausberger,  213. 
Kern  Barber  S.  Co.  v.  Freeze,  222, 

225,  227. 
Kernaghan  v.  Williams,  1221,  1223. 
Kerns  v.  Chambers,  1486. 
Keron  v.  Coon,  1499. 
Kerr  v.  City  of  New  Orleans,  1645. 
Kerr  v.  City  of  Waseca,  516. 
Kerr  v.  Corporation  of  Preston,  86. 
Kerr  r.  Hill,  186. 
Kerr  v.  Trego,  1259,  1326. 
Kerr  i\  Wooley,   465. 
Kersey  v.  Rash,  169. 


Ixxiv 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

JCey  C.  G.   L.  Co.  v.  Munsell,  242, 

350. 
Keyes   r.  Eureka  Mining  Co.,  909, 

926. 
Keyes  v.   Pueblo  S.  &   R.  Co.,   16, 

898,   910. 
Keyser  v.  Rice,  117,  118,  119. 
Keystone  Bridge  Company  r.  Sum- 
mers,  787. 
Keystone  Iron  Co.  v.  Martin,  1669. 
Keyton  v.  Brawford,  367,  368. 
Kicklighter  v.  Rosenthal,  850. 
Kidd  V.  Horry,  970. 
Kidd  V.  Johnson,  1055. 
Kilbourne  v.  Allyn,  1310. 
Kilbourne  v.  St.  John,  1310. 
Kilcat  V.  Sharp,  969. 
Kilpatrick  v.  Smith,  1326. 
Kilpatrick   v.   Tunstall,  246,   1378. 
Kimball  v.   Darling,  436. 
Kimball   r.   Merchants  S.   L.   &  T. 
Co.,  478. 

Kimbark  v.  Raymond,  445. 

Kimberley  r.  Jennings,  1092.  1096, 
1149. 

Kimberly  &  C.  Co.  v.  Hewitt,  25. 

Kimm  v.  Steketee,  1602. 

Kimpton   v.    Eve,   1430,   1431. 

Kinahan  i\  Bolton,  1042,  1069,  1087. 
Kincaid's  Appeal,  332. 

King   i:   Baker,   18?,   214. 

King  /■.  Baldwin,  1375. 

King   r.   Buskirk,  664. 

King  /•.  Campbell,    688,  690. 

King  r.  Clark,   1511,   1512. 

King  V.  Clay,   242. 

King  V.  Ford    River   L.    Co.,    524. 

King  V.  La  Branche,   1619. 

King  V.  McCully,   846. 

King  V.  Miller,  826. 

King  V.  Morris,   716, 

King  r.  Reed,  982. 

King  )•.  Smith,    6.57. 

King  V.  Stuart,  688. 

King  V.  Watts.   269. 


ARE    TO    THE    PAGES. 

King  V.  Williamson,  664. 
Kingsbury  v.  Flowers,  756,  757. 
Kinkaid  v.  Hiatt,  77. 
Kinley  Mfg.  Co.  v.  Kochersperger, 

455,    460. 
Kinnear    Mfg.    Co.   v.   Beatty,    720, 

728,  785. 
Kinney  r.  Ogden's  Adm'r,  160. 
Kinney  v.  Redden,  68. 
Kino  c.  Rudkin,  821. 
Kinports  v.  Rawson,  362,  366. 
Kmsler  r.  Clarke,  641,  1569. 
Kinsman  Street  R.   Co.    u.   Broad- 
way &  N.  S.  R.  Co.,  587. 
Kinyon  i\  Duchene,  442. 
Kip  V.  New  York  &  H.  R.  Co.,  102, 

621. 
Kirley  v.  Pascault,  137. 
Kircher  v.  Pederson,  1238,  1313. 
Kirchner  v.  Miller,  388. 
Kirk  V.  United  States,  221. 
Kirkman  v.  Handy,  705,  707. 
Kirkpatrick  v.  Brown,  849. 
Kirkpatrick  v.  Peshine,  1135,  1136, 

1137. 
Kirwin  v.  Murphy,  349,  1343. 
Kisor's  Appeal,  310. 
Kissel  V.  Lewis,  745. 
Kittell    V.   Missisquoi  R.  Co.,  606. 
Kittle  V.  De  Lamater,  1638. 
Kitzman  v.  Minn.  T.  Mfg.  Co.,  43, 

180,    195,    267. 
Klinck  V.  Black,  336,  1647. 
Knapp,  Stout  &  Co.  v.  St.  L.  T.  R. 

Co.,   793. 
Kneedler  r.  Lane,  1476. 
Knight    t\    Flatrock    &    Waldron 

Turnpike  Co.,  493. 
Knight  r.  Hirbour,  1650. 
Knight  r.  Simmonds,  1136,  1143. 
Knighton   v.   Young,    326. 
Kniskern    v.    Lutheran    Churches, 

292,  309. 
Knopf     V.     Chicago     Real     Estate 
Board,  549. 


TABLE  OF  CASES  CITED. 


Ixxv 


THE    REFERENCES 

Knopf  V.  First  National  Bank,  489, 

547. 
Knopf    r.    Kochersperger,   549. 
Knott    V.    Morgan,    1050. 
Knowles  v.  Peck,  1457. 
Knowlton   v.   Providence   &  N.   Y. 

S.  Co.,  129. 
Knowlton  r.   Supervisors,  465. 
Knox  V.  Randall,  150. 
Knox   County    v.    Harshman,  135, 

205,    1647,    1657,   1658. 
Knudsen  r.  Benn,  1410,  1413,  1420. 
Kochersperger  r.  Larned,  455,  460. 
Koester   i\   State,  1450. 
Koger  r.  Kane,  362,  370,  379,  409. 
Kohler  Mfg.  Co.  v.  Beeshore,  1018, 

1079. 
Kohlsaat  r.  Crate,  1620,  1629. 
Kohn  V.  Kerngood,  1654 
Kohn  V.  Lovett,  209. 
Kohn  r.  Old  T.  M.  Co.,  20,  38. 
Kolff    r.     St.     Paul    F.    Exchange, 

1195. 
Koon  V.  Snodgrass,  499. 
Kostering  r.   Seattle  B.  &  M.  Co., 

1032,  1075,  1083. 
Kraft  r.  Welch.  1126. 
Kramer    c.    Old,    1158,    1163,    1168, 

1169. 
Krauss  v.  Peebles'  Sons  Co.,  1079. 
Kraut's  Appeal,  852. 
Krehl  r.  Burrell,  4,  852. 
Krieschel    v.    County   Commission- 
ers, 1271. 
Krolik  r.  Wayne  Circuit  Judge,  23. 
Krone   r.   Krone,   1546. 
Kronschnabel-Smith  Co.  v.   Kron- 

schnabel,  1157. 
Krug  r.   Davis,   223. 
Kuehn   v.   City  of  Milwaukee,  725, 

728. 
Kuhl  V.  Martin,  1504. 
Kuhn   r.  McNeil.  353,  354. 
Kulinski  r.  Fambrowski,  307. 
Kurtz  r.  Beatty,  320. 


ARE    TO    THE    PAGES. 

Kurtz  V.  Spence,  970. 
Kyes    r.    St.    Croix    County,    1276, 
1279,   1313. 


L.    L.    &   G.    R.   Co.   V.   Clemmans, 

533. 
Labouchere  v.  Dawson,  1169,  1357. 
Labouchere  r.  Earl  of  Wharncliffe, 

1196. 
Lacey  v.  Administrators,  190. 
Lacey  v.  Beaudry,  333 
Lackay  v.  Curtis,  1527. 
Ladd  V.   Cameron,  901. 
Ladd  V.  Osborne,  672. 
Ladd  V.  Oxnard,  944,  979,  980. 
Ladd  V.  Spencer,  520,  527. 
Ladies  Benevolent  Society  v.  Ben- 
evolent Society,  1199,  1506. 
Lady  Bryan  v.  Lady  Bryan,  52. 
Lady  Bryan  Mining  Co.,  In  re,  280. 
Lady  Poine's  Case,  334. 
Laeber  v.  Langhor,  432. 
Laethe  'V.   Thomas,  255. 
Lafayette  v.   Cox,   1313. 
Lafon  V.  Desessart,  169. 
Laird,    Norton    Co.    r.    County    of 

Pine,  482. 
Lake  Erie  &  W.   R.    Co.    v.  Clug- 

gish,   1576. 
Lake  Erie  &  W.  R.  Co.  v.  Michen- 

er,  602. 
Lake  Erie  &  W.  R.  Co.  r.  Young, 

715. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Chi- 
cago &  W.  I.  R.  Co.,  586. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Fel- 

ton,  673,  1507. 
Lake    Shore    &    M.    S.    Ry.    Co.   v. 

Taylor,  10,  38,  1430,  1432. 
Lake  View  r.  Letz,  705,  784. 
Lamar  v.  Lanier  H.  Co.,  1214. 
Lamb  v.  B.,  C.  R.  &  M.  R.  Co.,  538. 


Ixxvi 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Lamb  v.  Drew,  111,  317. 

Lamb  v.  Evans,   975. 

Lamb  v.  Grand    Rapids    School   F. 

Co.,  944. 
Lamb  v.  Shaw,  1635. 
Lambert  f.  Alcorn,  1595,  1632,  1634. 
Lambert  c.  Haskell,  1585,  1614. 
Lambert  v.  Lambert,  107. 
Lambert  v.  Mallett,  1369. 
Lambeth  r.  De  Bellevue,  517,  518. 
Lamborn    v.    Covington  Company, 

769. 
Lamoille  Valley   R.    Co.   v.    Bixby, 

1350. 
La  Mothe  v.  Fink,  47,  48,  425,  428. 
Lampton  r.  Usher's  Heirs,  375,  380, 

1627. 
Lanahan  v.   Gahan,   667,   668. 
Lancaster  &  C.  R.  Co.  v.  The  North 

Western  R.  Co.,  41,  42. 
Lander    r.    Mercantile   Bank,   465. 
Landes  v.  Globe  P.  M.  Co.,  1542. 
Landis    v.    Wolf,    1615,    1631,   1632, 

1635. 
Landreth  v.  Landreth,  1037. 
Lane  v.  Clark,  70. 
Lane  v.  Morrill,    1245,    1276. 
Lane  v.  Newdigate,  5,  768. 
Lane  v.  Roselius,  1592. 
Lane  v.  Schomp,  1325. 
Lane  &  Bodley  Co.  v.  Locke,  909. 
Laney  v.  Jasper,  773. 
Langabier  v.  Fairbury,  P.  &  N.  R. 

Co.,  613,  614,  1554. 
Langdon  v.   Templeton,  76. 
Langley,  Ex  parte,  1434. 
Langley  v.  Ashe,   176,  267. 
Langworthy  v.  Dubuque,  521. 
Langworthy  r.  McKelvey,  1631. 
Lanier  v.   Adams,  419. 
Lannes  v.  Courege,  84. 
Lanning  v.  Osborne,   125. 
Lanpheimor  r.  Rosonbaum,  1403. 
Lansdowno  r.  Lansdowne,  639. 
Lansing  v.  Easton,  1429. 


ARE    TO    THE    PAGES. 

Lansing  v.  Eddy,  146,  174,  184,  228, 

1102. 
Lansing  v.  North  River  S.  B.  Co., 

855. 
Lanterman    v.   Blairstown   R.    Co., 

609. 
Lanzit    v.    Sefton    Mfg.    Co.,    1158, 

1159. 
Lapeer  Co.  v.  Hart,  75,  77. 
Lapere  v.  Luckey,  826. 
Laramie   National   Bank    v.   Stein- 

hoff,  1425,  1428,  1429,   1472. 
Lare  v.  Harper  &  Bros.,  980. 
Large    v.   Ditmars,  1507. 
Larrabee  v.  Lewis,  1020.. 
Larne  v.  Friedman,  1370, 
Lasala  v.  Holbrook,  810. 
La  Salle  &  P.  H.  &  D.  R.  Co.   v. 

Donoghue,  455. 
Lasater   v.   Green,  468. 
Lathrop  v.  Marsh,  642. 
Latimer  v.  Aylesbury  &  B.  R.  Co., 

608. 
Lattimer  v.  Livermore,   811,   1136, 

1137,   1145. 
Laughlin  v.  Board  of  Commission- 
ers, 1238. 
Laughlin  v.  President,  705,  707. 
Law  I).  Wilgees,  632. 
Lawley  i\  Lawley,  649. 
Lawrence  v.  IngersoU,  1326. 
Lawrence  v.  Leidigh,  1330,  1331. 
Lawrence  v.  Mayor,  321,  1293. 
Lawrence  v.  Philpot,      1366,     1478,. 

1569. 
Lawrence  v.  Smith,  981. 
Lawrence  r.  Traner,    445,    1634. 
Lawrence    Mfg.    Co.    v.    Tennessee 

Mfg.  Co.,  1034. 
Lawson  v.  Menasha    W.    W.    Co.,, 

840. 
Lawson  ;;.  Schnellen.  1306. 
Lawton  r.  Green,  1606,  1620. 
I^yton  r.  Mayor,  1247.  1260,  1266. 
Lazzell  v.  Garlow,   669. 


TABLE  OF  CASES  CITED. 


Ixxvii 


THE    REFERENCES 

Lea    &    Perrins    v.    Deakin,    1023, 

1024,  1607. 
Learned  v.  Hunt,  705,   802. 
Leather    Cloth    Co.    v.    American 

Leather     Cloth    Co.,    1032,    1054, 

1074,  1076,   1077,   1079,   1080. 
Leather  Cloth  Co.  v.  Lorsont,  1158, 

1172. 
Leavitt   v.    Windsor    L.    &    I.    Co., 

1346. 
LeClercq  i:  Trustees,  731. 
Lecourt  v.  Gaster,  86. 
Lee  V.  Alston,    644, 
Lee  V.  Clark,  1513. 
Lee  V.  Haley,  1069,  1088. 
Lee  V.  Packard,  431. 
Lee  V.  Town  of  Mellette,  510. 
Lee  V.  Vaughan,  369. 
Leech  v.  Schweder,  817,  821. 
Leeds  v.  Cheetham,   92,  396. 
Leggett  V.  Avery,  892. 
Leggett  V.  Dubois,  1489. 
Leggett  V.  Morris,  214. 
LeGuen  v.  Gouverneur,  212. 
Lehigh  V.  C.  Co.  v.  Hamblen,  1059. 
Lehman  r.  Logan,  653. 
Lehman  v.  Roberts,  352. 
Leighton   v.   Leighton,   389. 
Leighton  r.  Young,  392. 
Leininger's  Appeal,  696. 
Leitch  V.  Wentworth,  473,  474. 
Leitham  v.  Cusick,  50,  1553. 
Lemback  v.  Nye,  672. 
Lemont  v.  Singer  &  S.  T.  Co.,  518. 
Lempiere  r.  Lange,  398. 
Leunon,  Ex  parte,  1454. 
Lennon,  In  re,  1423,  1454. 
Leo  v.  Union  Pacific  R.  Co.,  1207, 

1547. 
Leonard  v.  Central  Insurance  Co., 

1631,  1635. 
Leonard    r.    Collier,   227. 
Leonard  r.  Ozark  Land  Co.,  1647. 
Leonard  r.  Yohnk,  286. 
Leopold  r.  Judson,  396. 


ARE   TO    THE    PAGES. 

Leroy  v.  Dickerson,   1567. 

Le  Roy  v.  New  York,  454. 

Le  Roy  v.  Wright,  665. 

Leslie  (-.  Brown,  1607. 

Leslie  v.  Lorillard,  1211. 

Leslie  v.  St.  Louis,  355,  498. 

Lessig  V.  Langton,  1547. 

Lester  Real  Estate  Co.  v.  City  of 
St.  Louis,  37. 

Ijever  v.  Goodwin,  1048. 

Levi  V.  Schoenthal,  16. 

Levy  V.  City  of  Snreveport,  1253, 
1255. 

Levy  V.  New  Orleans  W.  Co.,  1200. 

Levy  V.  Steinbach,  236,  237. 

Levystein  v.  O'Brien,   219. 

Lewis  V.  Armstrong,  164. 

Lewis  V.  Chapman,  982,  983. 

Lewis  V.  Christian,  393,  394. 

Lewis  V.  City  of  Elizabeth,  525. 

Lewis  V.  Daniels,  141,  346,  1488. 

Lewis  v.  Denver  C.  W.  W.  Co., 
125L 

Lewis  V.  Dinkgrave,  144. 

Lewis  V.  Eshleman,  546. 

Lewis  V.  FuUarton,  964,  977,  978. 

Lewis  V.  Gollner,  1138,  1144. 

Lewis  V.  Langdon,  1356. 

Lewis  V.  Levy,  142. 

Lewis  V.  Lumber  Co.,  687. 

Lewis  r.  Smith,   26,   1520. 

Lewis  V.  Spencer,   484. 

Lewis  V.  Stein,  763. 

Lewis  V.  Town  of  North  Kings- 
town, 39,  672. 

Lewis  r.  Winston,    1384,    1543. 

Lewiston  F.  M.  Co.  v.  Franklin  Co., 
1545. 

Lewiston  W.  &  P.  Co.  v.  Asotin 
County,  485. 

Lewton  v.  Hower,  402,  1551. 

Lexington  &  0.  R.  Co.  v.  Apple- 
gate.  792,  1606. 

Lexington  &  0.  R.  Co.  v.  Ormsby, 


Ixxviii 


TABLE  OF  CASES  CITED, 


THE    REFERENCES 

Licensed     Victuallers    N.     Co.     v. 

Bingham,  1018,  1052. 
Lick  V.  Ray,  350. 
Liddle    r.    Cory,    893. 
Liebstein  r.  Mayor,  525. 
Life  Association  v.  Boogher,  970. 
Life  Association  r.  McBlain,  102. 
Ligare  v.  Semple,  1160. 
Liggett   &   Myers    Tobacco   Co.  v. 

Reid  T,  Co.,  1032. 
Lightfoot  r.  Planters  Banking  Co., 

82. 
Lillie   V.   Lillie,  1621,  1626. 
Linden  c.  Case,  1236. 
Linden  Land  Co.  v.  M.  E.  R.  &  L. 

Co.,  719. 
Lindsay  v.  Hatch,  1429,  1430. 
Lindsay  v.  Jackson,  237,  1112. 
Lindsay  v.  Matthews,  410. 
Lindsley  v.  James,  228,  1102. 
Lines  v.  Spear,  1518. 
Lingwood  v.  Stowmarket  Co.,  771, 

776. 
Lininger   v.  Glenn,   135. 
Linn  County  v.  Hewitt,  1650. 
Linoleum  Co.  /".  Nairn,  1045. 
Linton  v.  Denham,  1502,  1504. 
Linwood  Park  Co.  r.   Van  Dusen, 

1123,  1126. 
List  c.  City  of  Wheeling,  1299. 
Lister  v.  Eastwood,  900. 
Listman    Mill   Co.    v.    Listman    M. 

Co.,  1043. 
Little  v.  Callus,   27. 
Little  V.  Gould,  956. 
Little  r.  Hall,  953. 
Little  r.  Kingswood  Collieries  Co., 

90. 
Little  V.  Marsh,  1509. 
Little  r.  Price,  98,   134,   150. 
Littlejohn  v.  Attrill,  666. 
Littler  r.  Jayne,  1263. 
Lilfler  ;;.   Thompson,   646. 
Littleton   v.   Fritz,   726. 
Liverpool  Association  v.  Smith,  969 


ARE    TO    THE    PAGES. 

Livingston  v.  Bank  of  New  York, 
1192. 

Livingston  v.  Exum,  1614,  1630. 

Livingston  v.  Gibbons,    56,    1489. 

Livingston  v.  Hollenbeck,  444,  459, 
1324. 

Livingston  v.  Livingston,  401, 1334,, 
1479. 

Livingston  v.  Ogden,  855,  863. 

Livingston  y.  Van  Ingen,  855. 

Livingstone  i\  Kane,  271. 

Lloyd    v.   Gurdon,  1111. 

Lloyd    V.    Heath,    1568. 

Lloyd  V.  Loaring,  428. 

Lloyd  V.  London,  C.  &  D.  R.  Co.». 
1118,  1136. 

Lockart    v.    Stuckler,   145. 

Lockhart  v.  City  of  Troy,  540,  1513, 
157L 

Lockridge   v.   Lyon,   156. 

Lockwood    r.    Faber,   901. 

Lockwood  V.    Lunsford,    693. 

Lockwood  V.  St.  Louis,  482. 

Lockwood  V.  Wickes,  925,  1497,. 
1650,   1665,   1669. 

Lockwood  Co.  v.  Laurence,  764. 

Loder  v.   Arnold,  1455. 

Loeb  V.  McMahon,  402. 

Logan   V.   Driscoll,   696. 

Logan  V.  Lucas,  253. 

Logan  V.  Patrick,  256. 

Logsden  r.  Willis,  1609. 

London  v.  City  of  Wilmington,  468. 

London,  Chatham  &  Dover  Rail- 
way Arrangement  Act,  In  re,  41, 
1210. 

London  &  N.  W.  R.  Co.  v.  Lanca- 
shire &  Y.  R.  Co.,  594. 

London  Society  v,  London  Co., 
1021. 

London  &  Yorkshire  Bank  r.  Pritt, 
1177. 

Long  r.  Kasebeer,  683,  1540. 

Long  r.  Merrill,    875. 

Long  /•.  Ragan,   677,  678. 


TABLE  or  CASES  CITED. 


Ixxix 


THE    REFERENCES 

Long  V.   Smith,   177. 

Long     Branch     Commissioners     v. 

West  End  R.  Co.,  13,  580. 
Longley  v.  City  of  Hudson,  514. 
Longman  v.  Winchester,  958. 
Longshore  Printing  Co.  v.  Howell, 

1417,  1420. 
Longwood  V.  R.  Co.  v.  Baker,  623, 

1466. 
Lonsdale  Co.  v.  City  of  Woonsock- 

et,  12,  662,  719. 
Loog  V.  Bean,  969. 
Lord  V.  De  Witt,  740. 
Lord  Auckland  v.  Westminster  Lo- 
cal Board  of  Works,  1247,  1248. 
Lord  Bernard's  Case,  653. 
Lord  Byron  v.  Johnston,   974. 
Lord  Courtown  v.  Ward,  655. 
Lord   Cowley   i'.  Byas,   37. 
Lord    Manners    v.    Johnson,    1136, 

1137,    1142. 
Lord    Montague    v.    Dudman,    86, 

262. 
Lord  Norbury  i\  Alleyne,  655. 
Lord  Orrery  r.  Newton,  638. 
Lord's   Executors  v.  Carbon  I.  M. 

Co.,    696,    698. 
Los  Angeles  University  v.  Swarth, 

1137,  1668. 
Losey  v.  Neidig,  169. 
Lothrop  i:  Southworth,  1577,  1621. 
Loudon  V.  Warfield,  652. 
Louisiana  National  Bank  v.  City  of 

New  Orleans,  1319. 
Louisville    Coffin    Co.    v.    Warren, 

751. 
Louisville,   N.   A.   &  C,   R.   Co.   v. 

Beck,  619. 
Louisville,  N.  A,  &  C.  Ry.  Co.  v. 

Ohio  V.  L  &  C.  Co.,  79. 
Louisville  &  N.   R.   Co.  v.  Bitter- 
man,  600. 
Louisville  &  N.  R,  Co.  v.  City  of 

Bessemer,  1487. 


ARE    TO    THE    PAGES. 

Louisville  &  N.  R.  Co.  v.  Common- 
wealth, 589,   1227. 

Louisville  &  N.  R.  Co.  v.  Gaines, 
505. 

Louisville  &  N.  R.  Co.  v.  M.,  J.  & 
K.  C.  R.  Co.,  780,  793,  794. 

Louisville  &  N.  R.  Co.  v.  McChord, 
596. 

Louisville  Trust  Co.  v.  Stone,  485. 

Love  V.  Allison,  1479. 

Love  V.  Baker,  113. 

Love  y.  Powell,  1483. 

Lovell  V.  Chilton,  376,  1523. 

Loven  v.  The   People,  1425,  1427. 

Low  V.  Hart,   1048. 

Low  V.  Holmes,  22. 

Low  V.  Innes,    1119. 

Low  V.  Routledge,    937. 

Low  t).  Ward,  974. 

Lowe  V.  Baker,  113,   114. 

Lowe  v.  Board  of  Commissioners, 
1504,   1505. 

Lowe  V.  Holbrook,   743. 

Lowe  V.  Lucey,  626. 

Lowe  'V.  Prospect  H.  C.  Assn.,  757. 

Lowery  v.  City  of  Pekin,  845. 

Lowndes  v.   Settle,   13,  664,  682. 

Lowndes  v.  Buncombe,   978. 

Lownsdale  v.  Gray's  H.  B.  Co.,  702, 
726. 

Lowry  v.  McGee,  54. 

Lowry  v.  Sloan,  206,  1215. 

Lowry  v.  Williams,  403. 

Loyless  v.  Howell,  1653. 

Lucas  V.  Chapeze,  368. 

Lucas  r.  McBlair,  855,  862. 

Lucas  V.  Spencer,  169. 

Lucas  V.  Williams,  1372. 

Luco  v.  Brown,  223. 

Ludington  r.  Handley,  138. 

Ludington  v.  Tiffany,  183,  1476. 

Ludlow  &  C.  C.  Co.  V.  City  of  Lud- 
low,  104,  1253,  1255. 

Lufkin  Rule  Co.  v.  Fringeli,  1158- 


iXXX 


TABLE  OF  CASES  CITED. 


THE    EEFERENCES 

Lumleyt'.  Wagner,  1096,  1116,  1149, 

1150. 
Lumsden  v.  Milwaukee,  1235,  1291. 
Lurting  v.  Conn,  626. 
Lutes  V.  Briggs,  1235,  1237,  1241. 
Lutheran    Evangelical    Church    v. 

Gristgan,   306. 
Lux  V.  Haggin,  16,  829,  842. 
Lyle  V.  Jacques,  449. 
Lyle  V.  Lesia,  571. 
Lyles  V.  Hatton,  157. 
Lynch  v.  Eastern,  La  F.  &  M.  R. 

Co.,  1300,   1308. 
Lynch  v.  Kennedy,  1113. 
Lynch  v.  Union  Institution,  37. 
Lyon   V.  Lyon,   1389. 
Lyon  V.  McLaughlin,  760. 
Lyons  v.  Green,  1482. 
Lyons  v.  Wilkins,  1413. 
Lyon's   Appeal,   1386. 
Lyrely  v.   Wheeler,  1486. 
Lyster  v.  Stickney,  1108. 
Lyth  Creek  W.  Co.  v.  Perdad,  841. 
Lytle   V.    Black,    499. 
Lytton  V.  Steward,  775. 

M 

M.    R.    F.    S.    &    Gulf    R.    Co.    v. 

Wheaton,   490. 
Mabel  M.  Co.  v.  Pearson  C.   &  I. 

Co.,   1478. 
Macaulay  v.  White  S.  M.  Co.,  1458, 

1467. 
MacDonald  v.  Rehrer,  1259. 
Mace  V.  Commissioners,  457. 
Macgregor  v.  Cunningham,  1518. 
Macher     v.     Foundling     Hospital, 

1124,  1130. 
Mack  V.  DeBardeleben  C.  &  L  Co., 

1218. 
Mack  V.  Petter,  939,  9*45. 
Mackey  v.  Scottish  Society,  824. 
Mackinnon    Pen    Co.    v.    Fountain 

Ink  Co..  1158,  1175. 


ARE    TO    THE    PAGES. 

Macklin    v.    Richardson,    992,    999, 

1007. 
Macklot  V.   Davenport,  444,  459. 
Maclary  v.   Reznor,  1507. 
MacLaury  v.  Hart,  1642. 
Macleod   v.   Jones,    407. 
Macon  C.  S.  R.  Co.  v.  Mayor,  558. 
Maddox  v.  White,  393,  398,  399,  656. 
Madisonville    Traction    Co.    'V.    St. 

Bernard  M.  Co.,  127. 
Maenhaut  v.  New  Orleans,  1241. 
Magee  v.  Overshiner,  574. 
Magennis  v.  Parkhurst,  1429. 
Magnay  v.  Mines  Royal  Co.,  11. 
Magnet  M.  Co.  v.  Page  &  P.  S.  M. 

Co.,  1486,  1499. 
Maguire  v.  Grattan,  817,  819. 
Mahan   v.   Accommodation    Bank, 

183. 
Mahan  v.  Tydings,  1579. 
Maher  v.  Gorman,  1372. 
Mahncke  v.  City  of  Tacoma,  1653. 
Mahon  v.  Stanhope,  649. 
Main  v.  Bromley,  280. 
Mair  r.  Himalaya  Tea  Co.,  1098. 
Mair  v.  Thellusson,  1559. 
Makemson  v.  Kauffman,  1288. 
Malain  v.  Judge  of  Third  Judicial 

District,  1660. 
Mallett  V.  Weybossett  Bank,  1514, 

1515,  1516. 
Malley  v.  Altman,  97. 
Mallinckrodt    Chemical    Works  v. 

Nemnisch,  1162,  1167. 
Mallory,  In  re,  273,  274,  280. 
Maloney  v.  King,  7,  1641. 
Maloon  v.  White,  665. 
Maloy  V.  Madget.  1279. 
Maloy  r.  Sloan,  325. 
Maltby  v.  Bobo,  892. 
Mammoth   Vein    Co.'s   Appeal,    13, 

702. 
Manchester  7'.  Dey,  1513,  1571. 
Manchester  Cotton   Mills  r.   Town 

of  Manchester,  332,  341,  1290. 


TABLE  OF  CASES  CITED. 


Ixxxi 


THE    REFERENCES 

Manchester  R.  Co.  v.  Worksop 
Board  of  Health,  679. 

Manderson    v.    Commercial    Bank, 

'    1204,  1205. 

Mandeville  v.  Harman,  1163. 

M'Andrew  v.  Bassett,  1019. 

Manhattan  M.  &  F.  Co.  r.  Van 
Keuren,  1556. 

Manhattan  Manufacturing  Co.  v. 
New  Jersey  Stock  Yard  Co.,  1133. 

Manhattan  Medicine  Co.  v.  Wood, 
1079. 

Manistique  L.  Co.  v.  Lovejoy,  1541, 
1542. 

Manko  v.  Borough  of  Chambers- 
burgh,  341. 

Manley  v.  Raleigh,  522. 

Manlove  v.  Vick,  1593. 

Manly  Building  Co.  f.  Newton,  1263. 

Mann  v.  Flower,  70. 

Mann  v.  Stephens,  811,  1092,  1136, 
1138,  1460. 

Manners  v.  Blair,  955. 

Manning  v.  Elliott,  412. 

Manning  v.  Hunt,  176. 

Manning  v.  Poling,  1659. 

Manson  v.  S.  B.  R.  Co.,  725. 

Manufacturers  G.  &  O.  Co.  r.  Ind. 
N.  G.  &  0.  Co.,  733. 

Manufacturers  Outlet  Co.  v.  Long- 
ley,  38. 

Manufacturing  Co.  v.  Trainer,  1034, 
1071. 

Many  v.  Sier,  901. 

Marble   v.    Bonhotel,   1640. 

Marble  v.  McKenney,  1279. 

Marble  Co.  v.  Ripley,  1095,  1346. 

March  V.  Edgerton,  193. 

March  v.  Romare,  1663. 

Marden  v.  Campbell  P.  P.  &  M.  Co., 
1665. 

Marine  Insurance  Co.  v.  Hodgson, 
134,  153,   169,  170. 

Marion  v.  Johnson,  675,  676. 

Mark  v.  Hyatt,  1593. 


ARE    TO    THE    PAGES. 

Mark  v.  Superior  Court,  1648. 

Marker  v.  Marker,  648,  649,  650. 

Markham  v.  Needham,  196,  197. 

Markham  v.  Stowe,  840. 

Markham  v.  Todd,  376,  377. 

Markle  v.  Board  of  Commission- 
ers, 1272. 

Marks,   In   re,   288. 

Marks  v.  Morris,  1101. 

Marks  v.  Stephens,  179. 

Marks  v.  Weinstock,  1549. 

Marks  v.  Willis,  157. 

Marlatt  v.  Perrine,  1476. 

Marlin  Fire  Arms  Co.  v.  Shields, 
970. 

Marquett^e,  H.  &  O.  R.  Co.  v.  Mar- 
quette, 498,  504,  505. 

Marriner  v.  Smith,  241,  345, 

Marsan  v.  Page,  749. 

Marsh  v.  Morton,  1622, 

Marsh  v.  Prosser,  202. 

Marsh  v.  Supervisors  of  Clark  Co., 
450,  472,  481. 

Marshall  v.  Beverley,    153. 

Marshall  v.  Colman,  1347. 

Marshall  v.  Commissioners,  1505. 

Marshall  v.  Cooper,   234. 

Marshall  v.  Gill,  1245. 

Marshall  v.  Holmes,  139,   192,   257. 

Marshall  v.  Illinois  State  Reform- 
atory, 1326. 

Marshall  v.  Lockett,  343. 

Marshall  v.  Pinkham,  1084, 

Marshall  r.  Ross,  1080. 

Marshall  v.  Silliman,  535,  537, 1299. 

Marshall  v.  Watson,  1354. 

Marter,  In  re,  281. 

Martin,  Ex  parte,  767. 

Martin  v.  Barnett,  445. 

Martin  v.  Blattner,  726. 

Martin  v.  Broadus,  21. 

Martin  v.  Headon,  817,  821. 

Martin  v.  Hewitt,  354. 

Martin  v.  Ingham,  1341. 

Martin  v.  Jewell,  249. 


Ixxxii 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Martin  r.  Jones,  356. 

Martin  v.  Lacy,   1341. 

Martin  v.  Lindsay's   Adm'rs,    1101. 

Martin  v.  Marks,  781. 

Martin  v.  Martin,  1404. 

Martin  v.  Michael,  152,  1401. 

Martin  i\  Murphy,   1163,   1177. 

Mai'tin  c.  Nutkin,  745. 

Martin  v.  Orr,  100. 

Martin  v.  Price,  817. 

Martin  v.  Wade's  Ex'rs,  1618. 

Martin  v.  Wright,  950. 

Martinetti    v.    Maguire,    981,    1002, 

1003,  1006. 
Martyn  v.  Knowllys,  640. 
Martyr  r.  Lawrence,  4,  679. 
Marvel  v.  Ortlip,  1500. 
Marx  Clothing  Co.  i\  Watson,  1415. 
Maryland  v.  Jarrett,  1328. 
Maryland  v.   Northern    C.    R.   Co.. 

433,  657,  658,  1487. 
Maryland    Savings    Institution    r. 

Schroeder,  1212. 
Maryland  Steel  Co.   v.  Marney,  139. 
Mason  v.  Chambers,  252. 
Mason  v.  City     of      Shawneetovi'n, 

1638. 
Mason  v.  Harpers  Ferry  B.  Co.,  874. 
Mason  v.  Hill,  760. 
Mason  v.  Kirkpatrick,  1644. 
Mason  v.  Mason,  1131. 
Mason  v.  Richards,  266. 
Mason  v.  Rollins,   1336. 
Mason  City  S.  &  M.  Co.  r.  Mason, 

552,   1292. 
Masonic     Temple     Association     r. 

Harris,  789. 
Massachusetts  B.  L.  Assn.  v.  Loh- 

miller,  148,  180,  224. 
Massam  v.  Thorley's   Cattle  Food 

Co.,  1036. 
Massie  v.  Mann,   1483. 
Massie   r.  Watts,  117. 
Massing  v.  Ames,  514. 
Master  v.  Hansard,  1131. 


ARE    TO    THE    PAGES. 

Masters  v.  McHoUand,  555. 
Masterson  c.  Ashcom,  135,  223. 
Mast,  Foos  &  Co.  v.   Stover  Mfg. 

Co.,  899,  1668. 
Matheson  c.  Hanna,  1462. 
Matheson  v.  Thompson,  427. 
Mathews  v.  Cody,  1555. 
Mathews  v.  Douglass,  73. 
Mathieson   r.  Harrod,  937. 
Matseil  V.  Flanagan,  940,  1052. 
Matson  v.  Field,  137. 
Matteson  i\  Wilbur,  831,  832,  833. 
Matthews  v.  Hudson,  653. 
Matthews  v.  Skinker,  418. 
Matthewson  v.   Stockdale,  942. 
Matthis  0.  Town  of  Cameron,  205, 

206,  1313,  1315. 
Mattingly  v.  Sutton,  1380. 
Matzell  V.  Flanagan,  1090. 
Maunsell  v.  Hort,  1127. 
Maunsell   v.  Midland  R.  Co.,  1221, 

1223. 
Mawman  v.  Tegg,  986,  1015. 
Maxwell  v.  Hogg,  1053. 
Maxwell  v.  Maxwell,  326. 
Maxwell  v.  Mitchell,  1121. 
Maxwell  r.  Somerton,  985. 
May  v.  Huntington,  1387. 
Mayall  c.  Higbey,  1183. 
Mayer  v.  Nelson,  176. 
Mayer  v.  Raymond,  445. 
Mayer  v.  Wood,  1397. 
Mayer's  Appeal,  323. 
Mayes  v.  Woodall,  153. 
Mayo  D.  Bryte,  179. 
Mayo  v.  Judah,  328. 
Mayor  v.  Africa,  1668. 
Mayor   v.   Baldwin,   482,    483,    520, 

521. 
Mayor  v.  Baltimore  County  W.  & 

E.  Co.,  1297. 
Mayor  v.  Bolt,  731,  756,  1531. 
Mayor  r.  Camak,  1308. 
Mayor  u.  Cardiff  Water-works  Co., 

13. 


TABLE  OF  CASES  CITED. 


ixxxiii 


THE    REFERENCES 

Mayor  v.  Curtiss,  702,  708. 
Mayor  v.  Eldridge,  1245,  1285. 
Mayor  v.  Finney,  1540. 
Mayor  v.  First   National    Banli   of 

Macon,  488. 
Mayor  o.  Flournoy,  528. 
Mayor  v.  Franl^lin,  319. 
Mayor  v.  Gardner,  1292. 
Mayor  v.  Georgia  R.  &  B.  Co.,  795. 
Mayor  v.  Gill,  1251,  1313. 
Mayor  v.  Grand  Lodge,  511,  526. 
Mayor  v.  Groshon,  670,  1199. 
Mayor  i'.  Harris,  562. 
Mayor  v.  Hedger,  680. 
Mayor  v.  Houk,  737. 
Mayor  v.  Huff,  1645. 
Mayor  v.  Hughes,  1260,  1266. 
Mayor  v.  Johnson,  534. 
Mayor  v.  Keyser,  1268,  1269. 
Mayor  v.  Magnon,  22. 
Mayor  v.  Meserole,     240,    459,    517, 

1324. 
Mayor  v.  Mitchell,  38,  806. 
Mayor  v.  New  York  &  L.  I.  F.  Co., 

1425,  1427,  1438,  1468. 
Mayor  v.  Patterson,  87,  1253. 
Mayor  v.  Pemberton,  584. 
Mayor  i\  Porter,  511,  520,  526. 
Mayor  v.  Putnam,  1237,  1243. 
Mayor  v.  Radecke.  1258. 
Mayor  v.  Smyth,  709,  712. 
Mayor  v.  Starin,  874. 
Mayor  v.  Thorne,  712,  1258. 
Mayor  v.  Warren  M.  Co.,  763,  764. 
Mayor  r.  Weatherby,  1245. 
Mayor  of  Atlanta  v.   The  Central 

R.  Co.,  1294. 
Mayor  of   Savannah    v.    Dehoney, 

528. 
Maysville  &  Mt.  S.  T.  R.  Co.  i:  Rat- 

liff,  705,  707. 
Maythorne  r.  Palmer,  1103. 
McAllen  r.  Rhodes,  1326,  1330. 
McAllister  ;-.  Clark,  1591. 
McArthur  r.  Kelley,  25,  1322. 


ARE    TO    THE    FACES. 

McBee  v.  Sampson,  43. 
McBride  v.  Chicago,  516. 
McBride  i\  Little,  1400. 
McBride  v.  Newlin,  1324. 
McCafferty  r.  McCabe,  1296. 
McCaffrey's  Appeal,  748. 
McCalley  v.  Otey,  407. 
McCallum  v.  Germantown,  765. 
McCann  v.  Day,  851. 
McCann  v.  Otoe  Co.,  135. 
McCann  v.  Taylor,  245,  330. 
McCartney  v.  Garnhart,  1075. 
McCaslin  v.  The  State,  631. 
McCauley  v.  Kellogg,  1341. 
McCauley  v.  McKeig,  696. 
McCaull  V.  Braham,  1120,  1150. 
McClellan  v.  Crook,  252. 
McClellan  v.  Marshall,  157. 
McClellan  v.  Taylor,  672. 
McClelland  v.  Miller,  554. 
McClung  V.  Livesay,  441,  546. 
McClurg's  Appeal,  1157,  1160. 
McColgan  v.  B.  B.  R.  Co.,  146. 
McComb  V.  Ernest,  888. 
McConkey  v.  Smith,  463. 
McConnaughy  v.  Pennoyer,  18,  350, 

351. 
McConnell   v.    Arkansas    B.    &    M. 

Co.,  1322. 
McConnell  v.  Ayres,  150. 
McConnell  v.  Rathbun,  845. 
McCook  V.  Bernd  Brothers,  169. 
McCook  V.  Pond,  1373. 
McCord   V.  Iker,   702,   703. 
McCorkle  v.  Brem,  20,  1371,  1505, 
McCormick  v.  Hartley,  425. 
McCormick  v.  Horan,  760. 
McCormick  v.  Nixon,  688. 
McCormick  v.  Riddle,  50. 
McCoun  r.  Delany,  1599. 
McCowan  v.  Whitesides,  783. 
McCoy  V.  Chillicothe,  442. 
McCoy  V.  McCoy,  1486. 
McCredie  r.  Senior,  1351. 
McCreery  v.  Brown.  1502,  1503. 


Ixxxiv 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

McCreery  v.  Sutherland,  142,  346. 
McCrimmin  r.  Cooper,  252. 
McCulla  r.  Beadleston,  408,  409,  418. 
McCulloch    V.    HoUingsworth,  241, 

344,  345. 
McCullough  V.  Hicks.  253,  254. 
McCurdy  v.  Baughman,  267. 
McCurdy  v.  Martin,  201. 
McCurry  r.  Gibson,  1157,  1159,  1160, 

1177,  1181. 
McCutchen  r.  Blanton,  705,  709. 
McDaniel  v.  Callan,  399,  1122. 
McDaniel  v.  Traylor,  257 
McDonald  v.  Brady,  4. 
McDonald  v.  Davis,  1644. 
McDonald  r.  Mackenzie,  261. 
McDonald  v.  Murphee,  442. 
McDonald  v.  Newark,  737. 
McDonald  v.  Payne,  568. 
McDonnell    v.    Grand    Canal    Co., 

1208,  1221,  1223. 
McDonnell    v.    Midland    G.    W.    R. 

Co.,  1225. 
McDonogh  r.  Calloway,  2,  3. 
McDowell  V.  Kurtz,  898. 
McDowell  V.  Massachusetts  &  S.  C. 

Co.,  537,   538,   1303. 
McDunn  v.  City  of  Des  Moines,  373. 
McEacharn  v.  Colton,  1128. 
McEldowney  v.  Lowther,  1474. 
McElroy  v.  Kansas  City,  559. 
McFadden  v.  Owens,  14. 
McFarland  v.  Dilly.  142,  347. 
McFarland  r.  Lindekugel,  39. 
McFarland  r.  Orange  &  N.  H.  C.  R. 

Co.,  730,  793. 
McFarland  r.  Rogers,  151. 
McFarlane  r.  Griffith,  109,  388. 
McGean  r.  M.  El.  R.  Co.,  564. 
McGee  v.  Smith,  21,  335. 
McGee's  Appeal,  570,  720,  1287, 1316. 
McGinnis  /•.  Friedman,  11,  29. 
McGinnis  r.  Watson,  292,  309. 
McGlee  v.  Ellis,  95. 


ARE    TO    THE    PAGES. 

McGoldrick   v.    Slevin,    1397,    1399, 

1400. 
McGowan  Co.  v.  McGowan,  1357. 
McGregor   v.    Silver    King    Mining 

Co.,  20,  50,  661,  671. 
McGuire  v.  Caskey,  1137. 
McGuire  v.  Eames,  886. 
McHenry  v.  Jewett,  50,  1642. 
McHugh  V.  Boston,  H.  &  E.  R.  Co., 

585. 
Mclndoe  v.  Hazeltine,  217. 
Mclnnis  v.  Pace,  1650. 
Mclntire  v.  Lucker,  552. 
Mclntire  v.  Mancius,  72. 
Mclntyre  v.  Town  of  White  Creek, 

459,  464. 
McJilton  V.  Love,  257. 
McJunkin  v.  Dupree,  322. 
McKay  f.  Chapin,  1575. 
McKee  v.  Griffin,  1353. 
McKee  v.  Town  of  Pendleton,  531. 
McKenzie  v.  Cowing,   1399. 
McKesson  v.  Hennessee,  1610. 
McKibbin  v.   Bristol,   392. 
McKibbin  v.  Brown,  1104,  1485. 
McKillopp  I'.  Taylor,  744,  1429. 
McKim   V.   Fulton.  1489. 
McKim  V.  Voorhies,  253. 
McKinley   v.    Chosen   Freeholders, 

1245. 
McKinnon  v.  Palmer,  71. 
McKinzie  v.  Mathews,  1552,  1625. 
McKnight  v.  Chauncey,  1114. 
McKoin  V.  Cooley,  228,  1102. 
McKoy    V.    Chiles,     374,     375,    380, 

1627. 
McLachlan  v.  Town  of  Gray,  570. 
McLaughlin  v.  Kelly,  682,  697. 
McLaughlin  v.  Sandusky,  37. 
McLean     v.     Fleming,     1067,    1073, 

1075,    1076. 
McLellan  v.  Mayor,  1249. 
McLeod  r.  Duncan,  1464,  1496. 
McLure  r.  Ala.  M.  Ry.  Co.,  385. 
McMahon  r.   O'Donnell,  1481. 


TABLE  OF  CASES  CITED. 


Ixxxv 


THE    REFERENCES 

McMahon  v.  Welsh,  544. 
McManus  v.  Cook,  1557. 
McMaugh  V.  Burke,  677. 
McMichael  v.  Eckman,  1657. 
McMillan  v.  Ferrell,  691. 
McMillen  v.  Butler,  1273. 
McMillen  v.  Smith,  23. 
McMorran  v.  Fitzgerald,  744. 
McMurtry  v.  Edgerly,  287. 
McNamara  v.  Irwin,  1486. 
McNeil   r.   Garratt,   24,   1430,  1432, 

1433. 
McNeill  v.  Edie,  223. 
McNeill  V.  Williams,  980. 
McPike  V.  Pen,  493,  498,   503,  537, 

1299,   1301. 
McPike  V.  Pew,  441. 
McPike  V.  West,  572. 
McQuigg  V.   Collins,  781. 
McRae  v.  Atlantic  &  N.  C.  R.  Co., 

11. 
McRae  v.  Brown,  1629,  1636. 
McReynolds  v.  Harshaw,  166,  1520. 
McRoberts  v.  Washburne,  855,  874. 
McSwiney  v.  Haynes,  833. 
McVey  v.  Brendel,  1062,  1063,  1082. 
McVickar  v.  Wolcott.  1641,  1654. 
McWethy  v.  A.  E.  L.  &  P.  Co.,  566, 

575. 
McWilliams  v.  Morgan,  1611. 
Meacham  Arms  Co.  r.  Swarts,  1401. 
Mead  v.  Anderson,  1644. 
Mead  v.  Merritt,  117. 
Mead  v.  Norris,  1427.  1429,  1455. 
Mead  v.  West  Publishing  Co.,  963, 

979. 
Meade  r.  Grigsby's  Adm'rs,  1381. 
Meadowcroft  v.  Kochersperger,524, 

526. 
Meadow  Valley    M.   Co.    v.    Dodds, 

628. 
Mears  v.  Howarth,  482. 
Meaux  v.  Pittman,  1636. 
Mechanics  Bank  v.  City  of  Kansas, 

504. 


ARE    TO    THE    PAGES. 

Mechanics   Bank     i\     Debolt,   466, 

860. 

Mechanics  Foundry  v.  Ryall,  26, 
667,  683. 

Mechling  v.  Kittauning  Bridge  Co., 
725,  1532. 

Medford  v.  Levy,  738. 

Medical  &  Surgical  Institute  v. 
City  of  Hot  Springs,  29,  86. 

Medley  v.  Pannill's  Adm'r,  1521. 

Meek  v.  Bunker,  227. 

Meeker  v.  Gilbert,  667. 

Meem  v.  Rucker,  207,  211. 

Meigs  V.  Lister,  736,  739. 

Meigs'  Appeal,  332. 

Meinert  v.  Harder,  148,  268. 

Meinhard  v.  Youngblood,   1541. 

Meixell  v.  Kirkpatrick,  151. 

Meloy  V.  Dougherty,  242,  264,  35L 

Melton  V.  Lewis,  169,  172. 

Memphis  &  C.  R.  R.  Co.  v.  Woods, 
1218. 

Menard  v.  Hood,  38,  1309. 

Meneely  v.  Meneely.  1036. 

Menendez  r.  Holt,  16,  1078,  1088. 

Meng  V.  Coffee,  1655. 

Menifee  v.  Myers,  169. 

Menifee's  Administrators  v.  Bali, 
135. 

Menken  r.  Frank,  1578,  1623. 

Mercantile  National  Bank  v.  Hub- 
bard, 464,  465. 

Mercantile  National  Bank  v.  May- 
or, 476,  477. 

Merced  M.  Co.   v.   Fremont,  693. 

Mercer  v.  Byrd,  322. 

Merchants  Banking  Company  v. 
Merchants  Joint  Stock  Bank, 
1070. 

Meredith  v.  Benning,  169,  175. 

Meredith  ;;.  Sayre,  1251,  1286. 

Merriam  v.  Board  of  Supervisors, 
1236. 

Merrill  v.  Gorham,  459. 

Merrill  v.  Humphrey,  467,  476,  477. 


Ixxxvi 


TABLE  OF  CASES  CITED. 


THE  REFERENCES 

Merrill  r.  Lake,  56. 
Merriman  v.  Norman,  362. 
Meniman  v.  Polk,  349,  356. 
Merrit,    Ex  parte,  73. 
Merritt  r.  Farris,  444. 
Merritt  v.  Hunt,  377. 
Merryfield  i:  Jones,  1606. 
Merryweather  v.  Moore,  27. 
Mershon  v.  Bank  of  the  Common- 
wealth, 172. 
Merwin  v.   Smith,  1477,  1506,  1562, 

1569. 
Merz  Capsule  Co.    v.  W.  S.  Capsule 

Co.,  1221,  1224. 
Mesker  r.  Koch,  468. 
Messmore  r.    Stephens,   324. 
Metcalf,  In  re,  273,  275. 
Metcalf  v.  Gilmore,  258. 
Methodist     Churches     v.     Barker, 

1590. 
Metler's  Adm'rs  v.  Metier,  83. 
Metropolitan    City   R.    Co.   v.    City 

of  Chicago,   782,   794,   1531. 
Metropolitan    Electric    S.     Co.     v. 

Ginder,  1117,  1152. 
Metropolitan  G.  &  S.  Exchange  r. 

Chicago  Board  of  Trade,  1201. 
Metropolitan  G,  &  S.  Exchange   v. 

Mutual  U.  T.   Co.,  1201. 
Metz  V.  Anderson,  444. 
Metzger  v.  Attica  &  A.  R.  Co.,  1299. 
Metzler,  In  re,   273,  277. 
Metzler  v.  Wood,  979. 
Mewhorn   v.    Glass,    185. 
Mexborough  r.  Bower,  5. 
Mexican  Ore  Co.  v.  Mexican  G.  M. 

Co.,  38.  1454. 
Meyer  v.  Devries,  970. 
Meyer  v.  Phillips,  761,  762. 
Meyer  v.  Rosenblatt,  460. 
Meyer  v.  Tully,  147. 
Meyrowitz   Mfg.    Co.    r.    Eccleston, 

909. 
Mcysonbiirg  r.  Schlieper,  421,  1615. 
Miohaux's  Adm'r  r.  Brown,  1619. 


ARE    TO    THE    PAGES. 

Michel  V.  Sammis,  414. 

Michie  v.  Ellair,  391. 

Mickles   v.    Rochester    City    Bank. 

1232. 
Micou  V.  Tallassee  Bridge  Co.,  873. 
Middlesex    Co.   v.    City   of   Lowell, 

774. 
Middlestadt  v.  W.  S.  &  P.  Co.,  763. 
Middleton   r.   Greeson,  1287. 
Middlings  Purifier     Co.    r.    Chris- 
tian, 913. 
Midland  R.  Co,  v.  Smith,  602.  608, 

619. 
Midland    T.    &    F.    Co.    v.   Wilson, 

874. 
Mikesell  r.  Durkee,  614. 
Milan  Steam  Mills  r.  Hickey,  662, 

683. 
Miles  r.  Davis,  147. 
Miles  r.  Edwards,   1630. 
Miles  V.  Ray,  1277. 
Miles  V.  Sheep  Rock  M.  &  M.  Co.,  7. 
Miles  V.  Thomas,  1346. 
Milhau    V.   Sharp,   590,  1235,   1236, 

1314. 
Millar  v.  Taylor,  934,  954,  971,  991. 
Miller,  Ex  parte,  1439,  1444. 
Miller  v.  Androscoggin     Pulp    Co., 

888. 
Miller  v.  Argyle's  Ex'r,  362,  370. 
Miller  v.  Burket,  662. 
Miller  v.  Clements,  184. 
Miller  v.  English,  310. 
Miller  v.  Estill,  149. 
Miller  r.  Ford,  93,  1100.    * 
Miller  v.  Gable,  292,  309. 
Miller  v.  Gaskins,  154,  1377. 
Miller  r.  Gittings,   117,    118,   120. 
Miller  v.  Gorman,  451. 
Miller  v.  Grandy,  491,  548. 
Miller  v.  Little,  405. 
Miller  r.  Loeb,  90. 
Miller  r.  Longacre,  181. 
Miller  v.  Lynch,  664. 
Miller  v.  Mayor,  798. 


TABLE  OF  CASES  CITED. 


Ixxxvii 


THE    REFERENCES 

Miller  i\  Mayor  of  Mobile,  1289. 
Miller  o.  Mayor  of  Morristown,  715. 
Miller  v.  McDougall,    1507,   1508. 
Miller  v.  McElroy,  980. 
Miller  v.  O'Bryan,   1640. 
Miller  v.  Parker,  247,  416,  1575. 
Miller  v.  Traphagen,  1563. 
Miller  ;;.  Truehart,  803. 
Miller  v.  Washburn,  1476 
Miller  v.  Wills,  26,  672. 
Millhiser  v.  Willard,  736. 
Milligan  v.  Mitchell,  306. 
Milligan  v.  Nelson,  1634. 
Millington  r.  Fox,  1033,  1071,  1085. 
Mills   V.   Charleton,     467,   469,   491, 

527. 
Mills  V.  Cobby,  1445,  1461. 
Mills  V.  Dunham,  1158,  1161,  1176. 
Mills  V.  Gleason,  457. 
Mills  V.  Johnson,  457,   467,   469. 
Mills  V.  New  Orleans  Seed  Co.,  18, 

683. 
Mills    V.    Northern    R.     Co.,  1397, 

1399. 
Mills  V.  Parlin,  616. 
Mills  V.  Provident  L.  &  T.  Co.,  256. 
Mills  V.  Scott,  222,  225. 
Milne  r.  Van  Buskirk,  23. 
Milwaukee  v.  Milwaukee  &  B.   R. 

Co.,  791. 
Milwaukee  E.  R.  &  L.  Co.  r.  Bradey, 

88,   1502,  1503. 
Milwaukee    Iron    Co.    r.    Town    of 

Hubbard,  498,  503,  550. 
Miner  v.  Nichols,  801. 
Mining  Co.   of  Ireland   r.   Delany, 

1430. 
Minneapolis    Brewing   Co.    r.    Mc- 

Gillivray,   1344. 
Minneapolis,      etc.      Ry.      Co.      v. 

Dickey  County,  441,  482. 
Minneapolis  &  S.  L.  R.  Co.  r.  C, 

M.  &  St.  P.  R.  R.  Co..  8,  581. 
Minnesota    r.    Northern    Securities 

Co.,  1186,  1537. 


ARE    TO    THE    PAGES. 

Minnesota   L.   O.   Co.  v.  Maginnis, 

425. 
Minnesota  L.  0.  Co.  v.  Palmer,  499. 
Minnig's  Appeal,  667,  668. 
Minturn  v.  Seymour,  1475. 
Minturn  v.  Smith,  500. 
Mirkil  v.  Morgan,  702. 
Misner  v.  Bullard,  1630. 
Mississippi  v.  Johnson,  1337. 
Missouri,  K.  &  E.  R.  Co.  v.  Hoer- 

eth,  223. 
Missouri,  K.  &  T.  R.  Co.  v.  Scott, 

127. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Smith, 

1638. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Texas 

&  St.  L.  R.  Co.,  586. 
Missouri  River,  F.  S.  &  G.  R.  Co. 

V.  Morris,  504,  506. 
Mitchell  V.  Board  of  Commission- 
ers, 517,  518. 
Mitchell  V.  Boyer,  138. 
Mitchell  V.  Bunch,  117. 
Mitchell  V.  Dors,  661,  682,  694,  697. 
Mitchel!  v.  Hawley,  1632,  1638. 
Mitchell  r.  McClure,  283. 
Mitchell  V.  Milwaukee,    498. 
Mitchell  i\  Mitchell,  1512,  1564. 
Mitchell  V.  Reynolds,  1175. 
Mitchell  V.  Sherman,  378. 
Mitchell  V.  Southwestern  Railroad, 

1593. 
Mitchell  V.  St.  John,  221. 
Mitchell  V.  Sullivan,  1596. 
Mitchell     V.     Vermont   C.   M.   Co., 

1216. 
Mitchell  V.  Wiles,  1251. 
Mittnight  v.  Smith,  1350. 
Mix  V.  Vail,  1575,  1589. 
Moat  r.   Holbein,  1425.   1470. 
Mobile  &  G.  R.  Co.  r.  A.  M.  R.  Co., 

43.  667. 
Mobile  &  Girard  R.  Co.  v.  Peebles, 

498,  501,  504.  507. 


Ixxxviii 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Mobile    M.  Ry.  Co.  v.  Alabama  M. 

Ry.   Co.,   616,   1478,   1486. 
Mobile  &  0.  R.  Co.  v.  Moseley,  504, 

506. 
Mocher  v.  Reed,  67. 
Moeckly  v.  Gorton,  1108. 
Moet  V.  Couston,  1067. 
Moffat  V.   Calvert  County,   1543. 
Mogg  v.  Mogg,  630. 
Mohawk  Bridge  Co.  v.  Utica  &  S. 
R.  R.  Co.,  706,  707,  721,  723,  797. 
Mohawk   &   H.   R.  Co.  v.  Artcher, 

572,   701,   782,   783,   1322,   1334. 
Mohawk  &  H.  R.  Co.  v.  Clute,  485. 
Moies  V.  O'Neill,  1356. 
Molyneux  v.  Scott,  1404. 
Money  v.  Jordan,  106,  1447. 
Monroe  v.  Bradley,  1427,  1459. 
Monroe  v.  Harkness,  1427,  1459. 
Monroe  v.  Mclntyre,  97,  1504. 
Montague  r.  Dudman,  86,  262. 
Montague  v.  Flockton,   1152. 
Montague  v.  Horton,  1281. 
Montana  Mining  Co.  v.   St.  L.  M. 

&   M.   Co..   1594. 
Montana  Ore  P.  Co.  v.  B.  &  B.  C. 

M.  Co.  1645. 
Montgomery  v.    Gilbert,  1629. 
Montgomery  v.  McEwen,   349,   408, 

409. 
Montgomery  v.  Orr,   1286. 
Montgomery    c.    Thompson,    1025, 

1028. 
Montgomery  v.  Walker,    636. 
Montgomery  v.  Wassem,   524. 
Montgomery  v.  Whitworth,    261. 
Montgomery  G.-L.  Co.  v.  City  Coun- 
cil  of  Montgomery,  859,  1257. 
Monticello  Hydraulic  Co.  v.  Lough- 

ry,  357. 
Monumental  Savings  Assn.  v.  Fen- 
tress, 119. 
Moody  r.  Payne,  1349. 
Mooers  r.  Smedley.  543,  1324. 
Mooney  v.  Cooledge,  674. 


Moor  (•.  Anglo-Italian  Bank,  121.. 
Moor  V.  Veazie,  855,  862. 
Moore  v.  Ballard,   1267. 
Moore  v.  Barclay,  269,  1478. 
Moore  v.  Brooklyn  City  R.  Co.,  589,. 
Moore  i:  Chicago,  B.  &  Q.  R.  Co.v 

715. 
Moore  v.  City  of  Atlanta,  559. 
Moore  v.  Clear  Lake  Water  Works, 

837. 
Moore  v.  Cook,    376. 
Moore  v.  Cooke's  Adm'rs,  1523. 
Moore  v.  Cord,   242,   352. 
Moore  v.  Dial,    172. 
Moore  v.  Ferrell,    661,    666. 
Moore  v.  Granger,  404,  1628. 
Moore  v.  Hallum,  356,  1625. 
Moore  v.  Hill,  363,  1536. 
Moore  v.  Halliday,    26,    661. 

Moore  v.  Holliday,    123. 

Moore  v.  Holt,  93. 

Moore  v.  Hylton,  1508. 

Moore  v.  Steelman,  43,  1498. 

Moore  v.  Wayman,  470,  479. 

Moore  &  H.  H.  Co.  v.  Towers  Hard- 
ware Co.,  1166,  1168. 

Moorman  r.  Hoge,  1047. 

Mora  'V.  Avery,  144,  1590. 

Moran  v.  Woodyard,  175. 

More  V.  Massini,  683. 

Moredock  v.  Rawlings,  378. 

Moredock    v.    Williams,    375,    376,. 
1523,  1565. 

Morehead   v.  De  Ford,  269. 

Morehead   v.   Little  Miami   R.   Co.,. 
1322. 

Moreland  v.  Richardson,  678,   679. 

Morey  v.  Ball,  1403. 

Morgan,  Ex  parte,  1208. 

Morgan  v.  City     of     B-inghamton,. 
706,  1285. 

Morgan  /•.  City  of  Danbury,  774. 

IMorgan  r.  County  Commissioners,. 
1248,  1279. 


TABLE  OF  CASES  CITED. 


Ixxxix 


THE    REFERENCES 

Morgan  v.  County  Court,  1260,  1333, 

1435. 
Morgan  v.  England,  228,  1102. 
Morgan  v.  Morgan's  Adm'r,  C8. 
Morgan  v.  Negley,  1614. 
Morgan  v.  New  York  &  Albany  R. 

Co.,  1198. 
Morgan  v.  Perhamus,  1176. 
Morgan  v.  Rose,  307,  1536,  1642. 
Morgan  v.  Schermerhorn,  93,  1100. 
Morgan  v.  Schuyler,  1053. 
Morgan     v.     Whiteside's     Curator, 

239,  316. 
Morgan's    Sons    Co.   v.   Wendover, 

1064. 
Morgan   Envelope    Co.    v.    Walton, 

1023.  1025. 
Morganton  L.  &  I.  Co.  v.  Webb,  26, 

667. 
Moriarity  v.  Gait,  3  632. 
Moriarty  v.  Ashworth,  657. 
Morison  v.  Moat,  26. 
Morphett  v.  Jones,  1547. 
Morrice  v.  Hankey,  1445. 
Morrill    r.    St.   Anthony   F.   W.    P. 

Co.,  831. 
Morris  v.  Ashbee,  942,  943. 
Morris  v.  Barnwell,  1645. 
Morris  v.  Bean,  17. 
Morris  v.  Board  of   Pilot  Commis- 
sioners, 1323. 
Morris  v.  Central,  762. 
Morris  v.  Colman,  1155,  1157,  1349. 
Morris  r.  Cummings,    510,    546. 
Morris  v.  Edwards,    133. 
Morris  v.  Hill,  1437. 
Morris  v.  Hitchcock,  19. 
Morris  v.  Hume,  173. 
Morris  v.  Kelly,  992,  997,  1016. 
Morris  v.  Lowell     Mfg.     Co.,     882, 

912. 
Morris  v.  Mayor,   1267,  1285,   1286. 
Morris  v.  Merrell,  472,  511. 
Morris  v.  Morris,    639. 
Morris  v.  Sea  Girt  L.   I.   Co.,  849. 


ARE    TO    THE    PAGES. 

Morris  v.  Shelbourne,   913. 

Morris  v.  Willard,  40. 

Morris  v.  Wright,  944. 

Morris  C.  &  B.  Co.  v.  Bartlett,  160. 

Morris  C.  &  B.  Co.  v.  Fagin,  710. 

Morris  C.  &  B.  Co.  v.  Mayor,  799. 

Morris  C.  &  B.  Co.  v.  The  Society,. 

1092. 
Morris    Canal    &    Banking    Co.    v. 

Jersey   City,    109,   382,   498,   504, 

505. 
Morris  Canal  Co.  v.  Fagan,  1499. 
Morris  &  E.  R.  Co.  v.  Haskins,  1506. 
Morris  &  E.  R.  Co.  v.  Hudson  Tun- 
nel R.  Co.,  602. 
Morris  &  E.  R.  Co.  r.  Prudden,  20,. 

724. 
Morris  &  Essex  R.  Co.  r.  Newark 

P.  R.  Co.,  725. 
Morrison    v.    Bank    of    Commerce,. 

503. 
Morrison  v.  Bell,  92. 
Morrison  v.  Jacoby,  470. 
Morrison  v.  King,  816. 
Morrison  v.  Latimer,  677. 
Morrison  v.  Moat,  927. 
Morrison  Bros.  &  Co.  r.   Coleman,. 

1499. 
Morse  v.  Morse,  75. 
Morse  Pen  Co.  v.  Esterbrook,  906. 
Morse  T.  D.  &  M.  Co.  v.  Morse,  1158,. 

1175. 
Mortimer  r.  Cottrell,  630. 
Morton  v.  Carlin,   541. 
Morton  v.  Superior  Court,  1453. 
"Mosby  V.  Haskins,    215. 
Moses,  In  re,  274. 
Moses  V.  Flewellen,  1644. 
Moses  V.  Lewis,  390. 
Moses  r.  Mayor,  86,  87. 
Moses  V.  Mayor  of  Mobile,  33. 
Moses  r.  Pittsburg,    Ft.    Wayne   & 

C.  R.  Co.,  1293. 
Moses  v.  Risdon,  1246. 
Moses  V.  Tompkins,  1216. 


xc 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Moses  Brothers  r.  Johnson,  631. 

Hosier  c.  Caldwell,  767,  840. 

Mosley  v.  Alston,  1204. 

Moss  V.  Pettingill,  1486. 

Mosser  v.  Pequest  Mining  Co.,  1512. 

Motley  V.  Downman,  1033,  1087. 

Moton  V.  Hull,  117,  118,  119. 

Mott  V.  Ewing,   671,   837. 

Mott  V.  Pennsylvania  R.  Co.,  507. 

Mott  V.  Underwood,  15,  656. 

Mott  Iron  Works  v.  Clow,  945. 

Motte  V.  Bennett,  880. 

Motz  i:  Detroit,  524. 

Moulton  V.  Knapp,  179. 

Moulton  r.  Reid,  1325,  1328. 

Mountain  Lake  P.  Assn.  v.  Shart- 

zer,  382. 
Mountcashell  v.  O'Neill,  635. 
Mowday  v.  Moore,  702. 
Mower  r.   Staples,  1207. 
Mowrey  v.  Indianapolis    &    C.    R. 

Co.,  584,  1549. 
Mowry  v.  Grand  Street  &  N.  R.  Co., 

884. 
Mozley  v.  Alston,  1208,  1527. 
Mudge  V.  Salisbury,  831. 
Mueller  v.  Eau  Claire  County,  1238, 

1261,  1262,  1313,  1314. 
Muhler  r.  Hedekin,  1245,  1326,  1329. 
Muir  t'.  Howell,  13. 
Muldrick  r.  Brown,  693. 
Mulkern  v.  Ward,  968. 
Mullen  V.  City  of  Tacoma,  1326. 
Mullen  r.  Jennings,  43. 
Muller,  In  re,  289. 
Muller  V.  Bayly,  247,  416. 
Muller  V.  Fern,  1626. 
Muller  V.  Henry,  1448. 
Mulliken  r.  Reeves,  468. 
Mulock  r.  Mulock.  1502. 
Mulry  /•.  Norton,  336. 
Mulvane  v.  Tullock,  1638. 
Mulvany  v.  Kennedy,  678. 
Mulville  V.  Fallon,  848. 
Muncey  v.  Joest,  12. 


ARE    TO    THE    PAGE.S. 

Municipality  No.  1  c.  Municipality 

No.  2,  1270. 
Munis  V.  Herrera,  171. 
Munns  i\  Isle  of  Wight  R.  Co.,  608.. 
Munroe  v.  Wivenho  R.  Co.,  1096. 
Munson  v.  Miller,  479. 
Munson  v.  Minor,  444. 
Munson  v.  Tryon,  49,  50. 
Munt  V.  Shrewsbury  R.  Co.,  1210. 
Murdock  v.  De  Vries,  266. 
Murdock  v.  Prospect  P.  &  C.  I.  R. 

Co.,  602,  606,  607,  615. 
Murdock  v.  Walker,  1410,  1413. 
Murdock's    Case,   7,   433,   434,   657, 

658. 
Murfreesboro  R.  Co.     v.     Board  of 

Commissioners,  1260. 
Murphey,  l7i  re,  1472. 
Murphey  v.  Harker,  1432. 
Murphree  v.  Bishop,  216. 
Murphy  v.  De  France,  190. 
Murphy  v.  East  Portland,  1251. 
Murphy  v.  Harbison,  444,  456. 
Murphy  v.  Lincoln,  662,  671. 
Murray  v.  Bender,  1644. 
Murray  v.  Bogue,  938,  971,  979. 
Murray  v.  Elston,  1502. 
Murray  v.  Knapp,  666. 
Murray  v.  Overstolz,  124. 
Murtha  v.  Lovewell,  731. 
Muscan  Hair  Mfg.  Co.  r.  American 

Hair  Mfg.  Co.,  886,  907. 
Muscatine  v.  Mississippi  M.  R.  Co., 

157,  474,  508. 
Musch  V.  Burkhart,  330. 
Muse  i\  Wafer,  135. 
Musgrave  r.  Sherwood,  1609. 
Musgrave  v.  Staylor,  1495. 
Musselman  v.  Marquis,  683. 
Musser  v.  Brink,  393. 
Musser  v.  Hershey,  778. 
Mutual  B.  L.  Ins.  Co.  r.  Supervis- 
ors, 441,  498. 
Mutual  Life  Ins.  Co.  r.  Bigler,  436. 


TABLE   OF  CASES   CITED. 


XCl 


THE    REFERENCES 

Mutual  Life  Ins.  Co.  r.  National 
Bank  of  Newburgh,   435. 

Mutual  Reserve  F.  L.  Assn.  r. 
Phelps,  124. 

Mutual  Union  T.  Co.  v.  City  of  Chi- 
cago, 1297. 

Mygatt  V.  Goetchins,  755. 

Myers  v.  Hawkins,  661,  688. 

Myers  v.  Kalamazoo  Buggy  Co., 
1055,  11G9,   1356. 

Myers  v.  Steel  Machine  Co.,  1140, 
1150. 

My  Maryland  Lodge  v.  Adt,  1410, 
1413,  1415,  1543. 

Myrick  v.  La  Crosse,  447. 

Nansemond    Timber    Co.    v.    Roun- 

tree,  1582,  1596,  1601,  1620,  1626. 
Napa   Valley   Wine   Co.   v.   Boston 

Block  Co.,  1133. 
Nashville  Savings  Bank  v.  Mayor, 

1512. 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Mc- 

Connell,  33,  53,  600. 
Nast  y.  Town  of  Eden,  729. 
Nathan,  In  re,  285. 
National    Albany    Exchange    Bank 

V.  Wells,  487. 
National  Bank  v.   Carlton,  84. 
National  Bank  v.  Kimball,  488. 
National  Bank  v.  Staats,  459. 
National  Biscuit  Co.  v.  Swick,  1032. 
National     Cash     Register     Co.     v. 

American  Cash  Register  Co.,  899. 
National  Cash  Register  Co.  v.  Bos- 
ton    C.  L  &  R.  Co.,  892. 
National     Cash     Register     Co.     v. 

Navy   Cash   Register  Co.,   924. 
National  Co.  v.  Prudential  Co.,  823. 
National  Docks  R.   Co.  v.  Central 

R.  Co.,  598,  1191. 
National    Folding    B.    &    P.    Co.    v. 

Robertson,  925,  1650. 


ARE    TO    THE    PAGES. 

National  H.-P.  M.  Co.  r.  Hedden, 
882,  884,  912. 

National  Park  Bank  v.  Goddard, 
17,  18. 

National  Provincial  Bank  r.  Mar- 
shall, 1x77. 

National  Surety  Co.  v.  State  Bank, 
205,   257. 

Naughton   v.   Dinkgrave,    176,   177. 

Naylor  v.  Wellington,  1566. 

Neaf  V.  Palmer,  749. 

Neal  V.   Taylor,   1588. 

Neale  v.  Cripps,  646. 

Nebenzahl,  In  re,  288. 

Needles  v.  Frost,  250. 

Neeland  v.  State,  1326. 

Negley  v.  Henderson  B.  Co.,  451. 

Negro  Charles  r.  Sheriff,  52,  1545. 

Neilson  v.   Harford,  917. 

Neiser  v.  Thomas,   1326,  1328. 

Nelms  V.   Clark,  709. 

Nelson  v.  Mulligan,  708,  739. 

Nelson  v.  Owen,  73,  364,  365. 

Nelson  v.  Pinegar,  434,  658. 

Nelson's  Adm'r  r.  Armstrong,  231, 
1100. 

Nesinger  v.  C.  &  H.  T.  Co.,  12. 

Nessle  v.   Reese,    1121. 

Nethery  v,  Payne,  626. 

Neurath  r.   Hecht,  228. 

Nevil  r.  Clifford,  1242. 

Neville  v.   Pope,   217. 

Neville  v.  Wilkinson,  106. 

Nevin  v.   Printup,  1645. 

Nevins  v.  McKee,  135. 

Nevitt  V.  Gillespie,  626. 

New  V.  Bame,  1502,  1505. 

New  V.  Reissner,  249. 

New  V.  Wright,  1346,  1347,  1364. 

New  Albany  &  S.  R.  Co.  v.  Con- 
nelly, 606. 

New  Albany  &  S.  R.  Co.  v.  O'Daily, 
581. 

New  Central  Coal  Co.  7'.  George's 
Creek  Coal  &  Iron  Co.,  602,  1191. 


sen 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

New  E.  V.  Co.  r.  American  Insti- 
tute, 918. 

New  England  M.  S.  Co.  r.  Powell, 
1502. 

New  England  Phonograph  Co.  r. 
Edison,  915. 

New  H.  S.  M.  Co.  v.  Fletcher,  86. 

New  Haven  Clock  Co.  v.  Kochers- 
perger,  460,  479. 

New  Iberia  Rice  Milling  Co.  v.  Ro- 
mero, 4. 

New  Jersey  Z.  Co.  v.  Franklin 
Iron  Co.,  69,  1546. 

New  Jersey  Z.  £j  I.  Co.  v.  Trotter, 
695. 

New  London  t'.  Brainard,  516,  542, 
1313. 

New  National  T.  Co.  r.  Dulaney, 
1630. 

New  Orleans  v.  Paine,  1338,  1340. 

New  Orleans  r.  United  States,  721. 

New  Orleans  City  R.  Co.  v.  Cres- 
cent City  R.  Co.,  587. 

New  Orleans  &  N.  E.  R.  Co.  v. 
Mississippi,  T.  B.  &  L.  R.  Co., 
588. 

New  Orleans,  M.  &  C.  R.  Co. 
V.  Frederic,  604,  617. 

New  Orleans  W.  Co.  r.  Oser,  1494. 

New  York  r.  Connecticut,  72,  1527. 

New  York  v.  Mapes,  701,  1292. 

New  York  B.  &  P.  Co.  r.  Gutta 
Percha  Mfg.  Co.,  918,  921. 

New  York  &  C.  G.  &  S.  Exchange 
t\  Board  of  Trade  of  Chicago, 
1200. 

New  York  C.  &  H.  R.  Co.  v.  City 
of  Rochester,  737. 

New  York  D.  D.  Co.  r.  American 
L.  I.  &  T.  Co.,  100,  101. 

New  York  Filter  Co.  r.  Schwarz- 
walder  Co.,  892,  970. 

New  York  Filter  Mfg.  Co.  v.  Jack- 
son, 895. 


ARE    TO    THE    PAGES. 

New  York  &  Greenwood  L.  R.  Co. 

V.  Township  of  Montclair,  44. 
New   York  &  H.   R.   Co.   c.   Forty- 
second  Street  R.  Co.,  868. 
New   York  &   H.   R.    Co.    r.   Haw?, 

140. 
New  York  &  N.  E.  R.   Co.   v.  City 

of  Boston,  559. 
New   York,  N.   H.  &  H.   R.   Co.  v.. 

Scovill,   663,    673. 
New  York  &  N.  J.  T.  Co.   v.  East' 

Orange,  789. 
New   York  P.  &  D.  Establishment 

V.  Fitch,  683. 
New     York     Phonograph     Co.     v. 

Jones,  915. 
New  York  &  Rosendale  Cement  Co. 

V.  Coplay  Cement  Co.,  1027. 
New  York  Stock  Exchange  r.  Glea- 

son,  448. 
Newall  V.  Wilson,  897. 
Newark  Aqueduct  Board  v.  City  of 

Passaic,  13,  775. 
Newark  Coal  Co.  r.  Spangler,  1169. 
Newark  P.  R.  Co.  r.  Township  of 

East  Orange,  20. 
Newaygo  M.  Co.   v.  Chicago  &  W. 

M.   R.   Co.,  671. 
Newbold    v.   Newbold,    416. 
Newburgh  Turnpike  Co.  r.  Miller, 

857,  858. 
Newby   v.    Oregon   Company,   1056. 
Newcomb   r.  Horton,  474,  1533. 
Newcomer  v.  Tucker,  1448. 
Newell  V.  Parte,  1576. 
Newell  V.  Sass,    38,    845,    846,    850. 
Newhall   v.    McCabe    H.    Mfg.    Co., 

884. 
Newling  r.   Dobell,   1171. 
Newman  v.  Alvord,  1025,   1085. 
Newman  r.  Meek,  194. 
Newman  r.  Morris,  140. 
Newman  r.  Nell  is,  849. 
Newman  r.  Ring,  1464. 
Newman  r.  Taylor,  224. 


TABLE  OF  CASES  CITED. 


XClll 


THE    REFERENCES 

Newson  r.  Pender,  823. 

Newton  i:  Cliorlton,  1376,  1377. 

Newton  r.  Russell,  1631,  1635. 

Newton  r.  Summey,  405. 

Newton  County  Draining  Company 
V.  Nofsinger,  532,  550. 

Newton  Manufacturing  Co.  v. 
White,  1563. 

Ney  Mfg.  Co.  v.  Superior  Drill  Co., 
910. 

Niagara  Bridge  Co.  v.  Great  West- 
ern R.  Co.,  400,  870. 

Nicholls  r.  Stretton,  1157,  1160. 

JSJicholls   r.  Wentworth,  845. 

Nichols  V.  Campbell,  1447. 

Nichols  V.  Claiborne,    145. 

Nichols  V.  Jones,    693. 

Nichols  v.  Salem,  554,  606. 

Nichols  V.  Sutton,  571. 

Nicholson  v.  Patterson,  218. 

Nicholson  r.  Rose,  1132. 

Nicholson  r.   Stephens,  222,  223. 

Nicklin  v.  Hobin,  219. 

Nicodemus  r.  Nicodemus,  667,  668. 

Nicols   V.   Pitman,   967. 

Niehaus  v.  Cooke,  1292,  1502,  1507. 

Nielsen  i:  City  of  Albert  Lea,  1590, 
1635. 

Niemeyer  v.  Little  Rock  Junction 
R.   Co.,   599. 

Niles  V.  Davis,  356. 

Nilsson  V.  Jefferson,  885. 

Nininger  v.  Norwood,  715. 

Nixon  V.  City  of  Biloxi,  1636. 

Noble  V.  Arnold,  1631,  1636. 

Noble  f.  Butler,   169. 

Noble  V.  Union  River  Logging 
Railroad  Co.,  1342. 

Noble  r.  Wilson,  1514. 

Noble  Brothers  v.  State  of  Ala- 
bama,  592. 

Noesen  i\  Town  of  Port  Washing- 
ton, 1308. 

Nordenfelt  v.  Maxim  N.  G.  &  A. 
Co.,  1158,  1176. 


ARE    TO    THE    PAGES. 

Norfolk  &  N.  B.  H.  Co.  r.  Arnold, 
75,  79. 

Normand  r.  Otoe  Co.,  1336. 

Normandin  v.  Mackey,  410. 

Norris  v.  Hill,  830. 

Norris  v.  Pollard,  1380. 

Norris  i\  Tripp,   1659. 

Norristown  Turnpike  Co.  v.  Bur- 
ket,  555. 

North  V.  Kershaw,  907,  910. 

North's  Ex'r  r.  Perrow,  1477. 

North  Bloomfield  G.  M.  Co.  /'. 
United   States,  34,  767. 

North  British  &  M.  L  Co.  v.  Lath- 
rop,  94,  98. 

North  Canal  Co.  v.  Ynisarwed,  800. 

North  Carolina  G.  A.  Co.  r.  North 
Carolina  O.  D.  Co.,  415,  1582. 

North  Carolina  R.  Co.  v.  Commis- 
sioners, 466. 

North  Carolina  R.  Co.  v.  Drew,  17. 

North  Chicago  Rolling  Mill  Co.  r. 
St.  Louis  Ore  and  Steel  Co.,  231. 

North  Hudson  M.  B.  &  L.  Co.  r. 
Childs,  1397. 

North  River  S.  B.  Co.  v.  Hoffman, 
855,  863. 

North  River  Steamboat  Co.  r.  Liv- 
ingston,   863. 

North  St.  Louis  Gymnastic  Society 
V.  Hudson,   504. 

North  Western  Lumber  Co.  r.  Che- 
halis  County,  482. 

Northeastern  R.  Co.  v.  Barrett,  381, 
382. 

Northern  Pacific  R.  Co.  v.  Barnes- 
ville  &  M.  R.  Co.,  797. 

Northern  Pacific  R.  Co.  r.  Burling- 
ton &  M.  R.  Co.,  602. 

Northern  Pacific  R.  Co.  v.  Clark, 
467. 

Northern  Pacific  Ry.  Co.  v.  Cun- 
ningham, 25,  672. 

Northern  Pacific  R.  Co.  v.  Kurtz- 
man,  257. 


XCIV 


TABLE  or  CASES  CITED. 


THE    REFERENCES 

Northern  Pacific  R.   Co.  v.  Patter- 
son, 459. 
Northern  Pacific  R.  Co.  r.  St.  Paul, 

M.  &  M.   R.  Co.,  1494. 
Northern   Pacific   R.    Co.  v.   Wells, 

Fargo   &   Co.,    1640. 
Northern  Securities   Co.  v.  United 

States,  1186. 
Northey   r.   Pearce,  391. 
Northfield  Knife  Co.   v.   Shapleigh, 

1402. 
North  Western  Lumber  Co.  v.  Che- 

halis  County,  482. 
Northwestern      Distilling     Co.     v. 

Corse,  1496. 
Norton  r.  Beaver,  242,  350. 
Norton  v.  Eagle     Automatic      Can 

Co.,  897,  903. 
Norton  v.  Elwert,   669,   676,   679. 
Norton  v.  Snyder,  694. 
Norton  D.  C.  &  S.  Co.  v.  Hall,  901. 
Norwalk   H.   &   L.   Co.   v.   Vernam. 

676,  679. 
Norway  r.  Rowe,  637. 
Norwegian    Plow    Co.    i\    Bollman, 

193. 
Norwich  Gas  Light  Co.  v.  Norwich 

City  Gas  L.  Co.,  864. 
Norwood    V.    Baker,    472,    527,    531. 
Novello  r.  James,  1608. 
Novello  V.  Sudlow,  973. 
Noyes  v.  Vickers,  1484. 
Nunda   v.    Chrystal    Lake,    545. 
Nunn  I'.  Matlock,  195. 
Nusbaum  r.  Stein,  1545. 
Nutbrown  r.  Thornton,  669. 
Nye  r.  Town  of  Washburn,  441. 


0 


Oakdale  Mfg.  Co.  r.     Garst,     1158, 

1163. 
Oakley  r.  I'ound.  1389. 
Oakley  r.  The   Mayor,   1253. 
Oakley  r.  Trustees,  349,  350,  1322. 


ARE    TO    THE    PAGES. 

Oakley  v.  Young,   270. 
O'Beirne  v.  O'Beirne,  1561. 
Oberholser      v.      Greenfield,      1397, 

1644. 
Oberkoetter    v.    Luebbering,    1655. 
O'Brien  v.  Baltimore  B.  R.  Co.,  562. 
O'Brien  v.  Chicago   R.  I.   &   P.   R. 

Co.,  1193. 
O'Brien  v.  Harris,  29,   32. 
O'Brien  r.  Norwich    &   W.    R.    Co., 

725,  1532. 
O'Brien  v.  O'Connell,  14. 
O'Bryan   r.   Gibbons,   1353. 
Ocean    City   Assn.   v.   Schurch,   15, 

29,  1103,  1144. 
Ocean  City  R.  Co.  v.  Bray,  602. 
Ocean  Grove  Camp  Meeting  Asso- 
ciation r.  Commissioners,  837. 
Ochsenbein  r.  Papelier,  104,  105. 
O'Connell  v.  Chicago  T.  T.  Co.,  614. 
O'Conner  r.  Starke,  1563. 
O'Connor  v.  Sheriff,  169. 
Odell  V.  Mundy,  213. 
Odell  V.  Reed,  365. 
Odlin  r.  Woodruff,  482,  667. 
Odorless    Excavating    Co.    v.    Lau- 

man,   895, 
Oelrichs  v.  Spain,  1582,  1589,  1630. 
Offerman  &  W.  R.  Co.  r.  Waycross 

A.  R.  Co.,  1606. 
Ogden  V.  Gibbons,  855,  863. 
Ogden  V.  Kip,  40. 

Ogden  City  v.  Armstrong,  513,  530. 
Ogle  V.  Dill,  806. 
Ogle  r.  Edge,  881,  886,  887,  922. 
Oglesby  Coal   Co.  v.   Pasco,   719. 
Ogletree  r.  McQuaggs,  802. 
O'Grady  v.  Governors,  1196. 
Old    Colony   Trust    Co.    r.    City    of 

Wichita,  1535. 
Old  Telegraph  M.  Co.  v.  Central  S. 

Co.,  663,  665. 
Oldaker  r.  Hunt,  774. 
Olds  r.  Gary,  1635. 
Olin  r.  Bate,  1036. 


TABLE  OF  CASES  CIT.ED. 


xev 


THE    REFERENCES 

Olin  r.  Hungerford,  1527,  1528. 
Oliphant     v.       Commissioners     ot 

Atchison  Co.,  571. 
Oliphint  r.  Mansfield,  1630. 
Oliver  v.  Decatur,  422. 
Oliver   v.  Keightley,   1313. 
Oliver  v.  Memphis  &  L.  R.  R.  Co., 

504,  506. 
Olmstead  v.  Koester,  16,  20,  532. 
Olmstead  v.  Loomis,  810,  841. 
Olmsted's  Appeal,  100. 
Olney  L.  &  B.  Association  v.  Par- 
ker, 485. 
Olson  V.  City  of  Seattle,  552. 
Olympic  Athletic  Club     i\     Speer, 

1253. 
Omaha  &  S.  W.  R.  Co.  v.  Chicago, 

etc.,  Ry.  Co.,  1663. 
O'Neal  V.  Hines,  1163. 
O'Neal  V.  Virginia  B.  Co.,  444,  452, 

459. 
O'Neil  V.  Behanna,  1410,  1412,  1413, 

1414. 
O'Neill  V.  Browne,  199. 
Onondaga  Co.   Milk  Association  v. 

Wall,  1180. 

Onslow  r.  ,  393,  655. 

Oolagh  Coal  Co.  r.  McCaleb,  693. 
Oppermann  r.  Waterman,  1575. 
Ordden  r.  Oakley,  1510. 
Oregon  &  Cal.  R.  Co.     v.     Jackson 

County  476,  477. 
Oregon  Iron  Works,  In  re,  281. 
Oregon,  etc.,  Ry.   Co.   v.   Standing, 

458,  482. 
Oregon   S.  N.  Co.  v.  Winsor,  1157. 
Oregon  &  Washington  M.  S.  Bank 

r.  Jordan,  459. 
O'Reilly  v.  Miller,  1623. 
Organ  v.  M.  &  L.  R.  Co.,  619. 
Orient  Insurance  Co.  v.  Sloan,  251. 
Original    Hartlepool   Collieries   Co. 

r.  Gibbs,  776. 
Ormerod  r.  New  York,  W.  S.  &  B. 

R.  Co.,  777. 


ARE    TO    THE    PAGES. 

Orne  v.  Fridenberg,  1143,  1144. 
Orr  0.  LittlefieM,     886,     887,     895, 

896,  902,  1502,  1503. 
Orr  V.  Merrill,  914. 
Orr  V.  Orr,  346. 
Orr  V.  Peters,  430. 
Orr  V.  Pickett,  241. 
Orr  Ewing  v.  Johnston,  1049. 
Osborn      v.      Charlevoix      Circuit 

Judge,  86. 
Osborn  v.  Glasscock,  1432. 
Osborn  v.  Taylor,  15. 
Osborn  v.  United  States  Bank,  127, 

860,  1191. 
Osborn  r.  Village  of  Oakland,  1275. 
Osborn  r.  Brooklyn,  792. 
Osborn  v.  Missouri  Pacific  R.  Co., 

562,  616. 
Osborne   v.    Wisconsin    Central    R. 

Co.,  80. 
Osborne  &  Co.  v.  Missouri  Pacific 

R.  Co.,  615. 
Osburn  i\  Andre,  427. 
Osgood    V.    Allen,    938,    1020,    1021, 

1087. 
Ostell  V.  Le  Page,  121. 
Oswald  V.  Wolf,  703. 
Otis  V.  Sweeney,  50. 
Otis  Steel  Co.  v.  Local  Union,  1410, 

1412,    1413,    1414. 
Ottaquechee    W.     Co.    r.     Newton, 

805. 
Ottawa  V.  Chicago  &  R.  I.  R.  Co.. 

516. 
Ottawa  V.  Walker,  442,  1485. 
Ottawa  Glass  Co.  v.  McCaleb,  459. 

479,   486,   491. 
Outcalt  V.  Disborough,  340. 
Outlaw  V.  Reddick,  1377. 
Overall  v.  Ruenzi,  468,  511. 
Overton  v.  Blum,  190. 
Overton  v.  Stevens,  156. 
Overweight  C.  E.   Co.  r.  Cahill  E, 

Co..  912. 
Ovington   r.   Smith,   1584. 


xe  VI 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Owen  V.  Brien,  1502,   1504. 

Owen  V.  Ford,  38,  630. 

Owen  V.  Phillips,  752,  753. 

■Owens  V.  Crossett,    672. 

Owens  V.  Ranstead,  267. 

Owens  V.  Van  Winkle  G.  &  M.  Co., 

231. 
•Owens,  Admr.,  v.  Childs,  1371. 
Ozark  Land  Co.   v.  Leonard,  1647. 


Pacific  Express  Co.  v.  Seibert,  440, 

466. 
Pacific  Hotel  Co.  v.  Lieb,  460,  461,' 

486. 
Pacific  M.  T.  Co.  v.  Chicago  &  A. 

B.  Co.,  1188. 
Pacific  Mail  S.  Co.  v.  Toel,  1597. 
Pacific  P.  T.  Co.  V.  Dalton,  476. 
Pacific  R.  Co.  V.  Leavenworth,  580. 
Packard  v.  Board  of  County  Com- 
missioners, 1535. 
Packard  v.  Hayes,  1263. 
Packer  v.  Nevin,  1637. 
Packet  Co.  r.  Sorrels,  781. 
Packington     v.     Packington,     644, 

648. 
Paddock  v.  Stone,  705. 
Page  v.  Holmes  B.  A.  T.  Co.,  902. 
Page  V.  St.  Louis,  517. 
Page  V.  Vaughn,  1563. 
Page's    Ex'r    v.    Winston's    Adm'r, 

160. 
Paige  V.  Banks,  953,  1015. 
Paine  v.  Chandler,  840. 
Palfrey  v.  Shuff,  235. 
Palin  V.  Gathercole,  965. 
Palmer  v.  De   Witt,   990,   992,   999, 

1000. 
Palmer  v.  Foley,  1600,  1608. 
Palmer  v.  Gardiner,   145,  176,  177, 

1610. 
Palmer  /•.  Harris,    1079. 


Palmer  v.  Israel,  662,  673. 
Palmer  v.  Logansport  &  R.  C.  G. 

R.  Co.,  725. 
Palmer  v.  Napoleon,  467,  468. 
Palmer  r.  Rich,  500. 
Palmer  Pneumatic  Tire  Co.  v.  New- 
ton Rubber  Works,  885. 
Palo   Alto   B.   &   L   Co.   v.   Mahar, 

320. 
Panton    v.    Manley,    337. 
Pappenheim  v.  M.  El.  R.  Co.,  564. 
Paramore  v.  Persons,  342. 
Pargoud  v.   Morgan,  1616. 
Parham  v.  Justices,  554,  606. 
Pariente  v.  Bensusan,  1445. 
Paris     Chocolate     Co.     r.     Crystal 

Palace  Co.,  1105. 
Paris    Medicine    Co.   |-.   Hill    Co., 

1644. 
Parish  v.  Reeve,  1608. 
Park  V.  Meek,  1657. 
Park  V.  Musgrave,   417,   1630. 
Park  V.  The   Modern   Woodmen  of 

America,  1219. 
Parker  v.  Bond,   1629. 
Parker  r.  Brant,  896,  897,  903. 
Parker  v.  Catholic      Bishop,      570, 

720. 
Parker  v.  Challis,  444. 
Parker  v.  Furlong,  26,  695. 
Parker  v.  Garrison,   393,   394. 
Parker  v.  Green,  1644. 
Parker  v.  Jones,  146. 
Parker  v.  Judges,  153. 
Parker  v.  Laney,  750. 
Parker  v.  Larsen,    716. 
Parker  v.  Morton,   193. 
Parker  v.  Nation,  1380. 
Parker  v.  Parker,  696. 
Parker  v.  Sears.  883,  889,  903,  909. 
Parker  v.  Taylor,  777. 
Parker  v.  Wakeman,  1442,  1443. 
Parker  i\  Whyte,  1120,  1128. 
Parker  r.  Winnipiseogee    L.    C.    & 

W.  Co.,  46,  710,  751. 


TABLE  OF  CASES  CITED. 


XCVU 


THE    REFERENCES 

Parkhurst    v.    Kinsman,    879,    925, 

1465. 
Parkinson  v.  Laselle,  936,  937. 
Parkinson  v.  Trousdale,  166,  1499, 
Parks  V.  People's  Bank,  346. 
Parks  i:  Spurgin,  234,  1477. 
Parlett     v.     Guggenheimer,      1048, 

1050. 
Parmley    v.    Railroad    Companies, 

468,  469,  510. 
Parnell  r.  Parnell,  115. 
Parody  v.  School  District,  1280. 
Parr  v.  Bell,  91. 
Parrill  r.  McKinley,  385. 
Parrot  Silver  &  C.   Co.  v.  Heinze, 

1645. 
Parrott  v.  Floyd,   1653. 
Parrott  i'.  Palmer,    637,    638,    639; 

640. 
Parsons  v.  Gillespie,   1020,  1021. 
Parsons  v.  Hartman,   145. 
Parsons  v.  Hughes,  658. 
Parsons  v.  Parsons,  1389. 
Parsons  r.  Pierson,   176. 
Parsons  v.  Snider,  74. 
Parsons  r.  Wilkerson,    1545. 
Partington    v.    Booth,    1425,    1428, 

1445. 
Partridge    v.    Menck,    1074,    1080, 

1085. 
Paterson  &    H.    R.    R.    Co.    r.    Jer- 
sey City,  75,  76. 
Paterson,    N.    &    N.    Y.    R.    Co.    r. 

Kamlah,  620. 
Patoka  Township  r.  Hopkins,  715. 
Patten  v.  Marden,  841. 
Patterson  r.  Board  of  Supervisors, 

1644. 
Patterson  v.  Chicago,    D.   &   V.    R. 

Co.,  569,  616. 
Patterson  v.  Fish,  1384,  1385. 
Patterson  r.  Gordon,  11,  161. 
Patterson  v.  Hubbs,   1326. 
Patterson  v.  Miller,  11. 


ARE    TO    THE    PAGES. 

Patterson  v.  Scranton   &   F.   C.   R. 

Co.,  609. 
Patterson  v.  Wollmann,  874. 
Pattisson  r.  Gilford,  810. 
Patton  V.  Chattanooga,  1535. 
Patton  r.  Moore,  333. 
Patton  V.  Stephens,  1237,  1240. 
Patton  r.  Taylor,  362. 
I-aul  i:  Munger,  1642,  1654. 
Paul  r.  Pacific   R.   Co.,  461,   462. 
Paulk  r.  Mayor,  87,  88. 
Pavy  V.  Greensburg  Company,  524. 
Paxton  i\  Brinton,  1468. 
Paxton  V.  Douglas,  1404. 
Payne  v.  Graham,   142. 
Payne  v.  Loudon,  237. 
Payne  v.  McCabe,  1657. 
Payne  r.  McKinley,  615. 
Payne  v.  O'Shea,  190. 
Payne  r.  Paddock,  843. 
Payne  r.  Wallace,  1627. 
Payton  v.  Mclnown,  213. 
Peabody  r.  Norfolk,  27,  1095. 
Peacock   v.   Deweese,  1095,  1096. 
Peak  V.  Hayden,  641. 
Pearce  v.  Olney,  134,  189,  190,  191, 

196. 
Pearson  v.  Denham,  1385. 
Pearson  v.  Pearson,  36,  1169,  1170. 

1358. 
Peatross  v.  McLaughlin,  1479,  1521. 
Peck  V.  Belknap,  1268,  1269. 
Peck  r.  Brown,  690. 
Peck  V.  Conner,  1455. 
Peck  r.  Elder,  736. 
Peck  V.  Payne,  1383. 
Peck  V.  Schenectady  R.  Co.,  565. 
Peck  V.  School  District  No.  4,  483, 

495,  528. 
Peck  V.  Woodbridge,  97. 
Peck  i\  Yorks,  1563. 
Peck  Bros.    &    Co.    r.    Peck    Bros. 

Co.,  1059. 
Peek  V.  Matthews,  1144,  1145. 
Peeler  v.  Barringer,  417. 


XCVlll 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Peeples  v.  Byrd,  1336,  1338. 

Peet  V.  White,  1330. 

Peirs  V.  Peirs,  650. 

Pell  V.  Lander,   1577. 

Pell  V.  Northampton    &    B.    J.    R. 

Co.,  608,  611. 
Pelton  V.  National  Bank,  486,  487. 
Pelzer  v.  Hughes,  1644. 
Pelzer  v.  Newhall,  898. 
Pence  v.  Garrison,  772. 
Pendleton  r.  Eaton,  1627. 
Pendleton  Co.  v.  Barnard,  547. 
Penick    v.   High   S.   Mfg.    Co..   441, 

497. 
Penn  v.  Ingles,  84,  1383. 
Penn  v.  Lord  Baltmore,  115. 
Penn  Mutual  Life  Ins.  Co.  o.  Heiss, 

616. 
Pennell  r.  Roy,  121. 
Pennington   v.    Brinsop   Hall   Coal 

Co.,  770. 
Pennsylvania  v.  Wheeling  &  B.   B. 

Co.,  796,  797. 
Pennsylvania  Co.  v.  City  of  Chica- 
go, 564. 
Pennsylvania  C.  Co.  v.  Delaware  & 

H.  C.  Co.,  18,  19. 
Pennsylvania  Lead    Co.'s    Appeal, 

743. 
Pennsylvania  R.  Co.  r.  N.  D.  &  N. 

J.  J.  C.  R.  Co.,  13. 
Pennsylvania  R.  Co.  r.  National  R. 

Co.,  867. 
Pennsylvania  R.  Co.  r.  New  York 

&  L.  B.  R.  Co.,  702,  797. 
Pennsylvania  R.  Co.'s  Appeal,  843. 
Pennsylvania  S.  V.  R.  Co.  r.  Read- 
ing Paper  Mills,  782. 
Penny  v.  Holberg,  1595. 
Penrice  v.  Wallis,  602,  1657. 
Penrose  r.  Penrose,  127. 
Pensacola  &  A.  R.  Co.  r.  Jackson. 
61 9. 


Pensacola  T.  Co.  v.  Western  Union 

T.  Co.,  1201. 
Pentecost  v.  Magahee,  1653. 
Pentland  v.  Somerville,  648. 
Pentlarge  v.  Berston,  896. 
Pentney  v.  Lynn  Paving  Commis- 
sioners, 1527. 
Pentz  V.  Hawley,  1215. 
People  V.  Albany  &  S.  R.  Co.,  1199. 
People  V.  Albany  &  V.  R.  Co.,  1456, 

1468. 
People  V.  Barrett,  1326,  1327,  1435. 
People   V.   Board    of    Supervisors, 

1273. 
People  V.  Butler,  17,  23. 
People  V.  Canal  Board,  1343,  1344. 
People  V.  Central  R.  R.  Co.,  680. 
People  V.  Circuit  Judge,  96. 
People  V.  Clark,  38,  1275. 
People  V.  Coffin,  101. 
People  V.  Conklin,  1232. 
People  v.  Davidson,  723. 
People  V.  Diedrich,  1442,  1451, 1460, 

1472. 
People  V.  District  Court,  29,  32. 
People    V.    District   Court   of  Lake 

County,  1325. 
People  r.  District     Court     of     the 

Tenth  Judicial  District.  466. 
People  V.  Draper,  1325,  1327. 
People  V.  Dwyer,  1435. 
People  V.  Equity    Gas     Light    Co., 

724. 
People  r.  General  Electric  R.   Co., 

1532. 
People  r.  Gilmer.  246,  331. 
People  V.  Gold   Run  D.   &  M.   Co., 

697. 
People  V.  Horton,  730. 
People  r.  .ludge   of   St.    Clair   Cir- 
cuit, 23. 
People  r.  Law.  613,  615. 
People  r.  Lowber,  1245,  1246,  1250, 
1318. 


TABLE  OF  CASES  CITED. 


XCIX 


THE    REFERENCES 

People  V.  Mayor,  1245,  1250,  1533. 
People  0.  Mills,  1341. 
People  0.  Miner,  1319,  1530. 
People  V.  N.  Y.  &  S.  I.  F.  Co.,  722. 
People  V.  New  York  &  H.  R.  Co., 

791. 
People  V.  Randall,  1437. 
People  V.  Schoonmaker,  1642,  1654. 
People  V.  Spalding,  1427,  1460. 
People  V.  St.  Louis,  710,  716,  732. 
People  V.  Sturtevant,    1425,     1427, 

1453,  1470. 
People  V.  Third    Avenue    R.    Co., 

580,  868. 
People  V.  Truckee  L.  Co.,  779. 
People   V.   Van  Buren,   1401,    1402, 

1425,  1464,  1467. 
People  V.  Vanderbilt,  722,  1530. 
People  V.  Wasson,  104. 
People's  Gas  Co.  v.  Tyner,  33,  710, 

717,  741. 
People's  Mail  Steamship  Co.,  286. 
Peoples  National  Bank  v.   Marye, 

467,  471,  472. 
People's  Savings  Bank     v.    Tripp, 

444. 
Peoria  v.  Kidder,  459,  524. 
Peoria  &  R,  I.  R.  Co.  v.  Schertz, 

616. 
Perault  v.  Rand,  68,  69. 
Perceval  v.  Phipps,  965,  967. 
Perkins  v.  Collins,   50,   1189,   1552, 

1572. 
Perkins  v.  Foye,  841. 
Perkins  r.  M.  &  C.  T.  Co.,  725,  728, 

783. 
Perkins  v.  Town  of  Port  Washing- 
ton, 1308. 
Perks  r.  Wycombe  R.  Co.,  606,  607. 
Perrine  v.  Marsden,  399,  654. 
Perrot  v.  Perrot,  650. 
Perry,  In  re,  1406,  1439,  1443,  1457, 
Perry  v.  Hamilton,  667. 
Perry  v.  Kearney,  147,  1619. 


ARE    TO    THE    PAGES. 

Perry  v.  Kinnear,  1237,  1242. 

Perry  v.  McEwen,  312. 

Perry  v.  Michaux,  1499. 

Perry  v.  Parker,  11,  13,  663. 

Perry  v.  Shipway,  303,  304. 

Perry  v.  Thompson,  165. 

Perry  v.  Truefitt,   1032,   1035,   1061, 

1080. 
Perry  v.  Tupper,  335. 
Persse,  In  re,  91. 
Peter  v.  Prettyman,  1238,  1313. 
Peters  v.  League,  215. 
Peters  v.  Lewis,  714. 
Peters  v.  Peters,  675. 
Peters  v.  Prevost,  77,  108,  389. 
Peterson   v.    City   of    Santa   Rosa, 

774. 
Peterson  v.  Humphrey,  1054. 
Peterson  v.  Matthis,  11,  1568. 
Pettes  V.  Bank  of  Whitehall,  169. 
Pettibone  v.  Hamilton,  719,  784. 
Pettibone  v.  La  Crosse,  etc.,  620. 
Pettigrew  v.  Evansville,  772,  773. 
Pettigrew  v.  Foshay,  101. 
Pettingill  v.  Moss,  150,  155. 
Pettit  V.  Shepherd,  242,  349,  350. 
Petty  V.  Tooker,  296. 
Peto  V.  Brighton  R.  Co.,  1104,  1105, 
Peyton  v.  Lamar,  1397,  1399. 
Pfeltz  V.  Pfeltz,  339,  340. 
Pfingst  V.  Senn,  705,  707. 
Pflugar  V.  Pultz,  322. 
Pfohl  V.  Samson,  1654. 
Phelan  v.  Smith,  128,  482,  505. 
Phelps  V.  City  of  Watertown,  1245, 

1267. 
Phelps  V.  Foster,   1397,    1399,    1482, 

1606. 
Philadelphia  v.  River  Front  R.  Co., 

1526. 
Philadelphia  Ball  Club  v.  Hallman, 

1097,  1149. 
Philadelphia  Ball  Club     v.  Lajoie, 

1097,  1149,  1151,  1154. 


TABLE  OF  CASES  CITED, 


THE    REFERENCES 

Philadelphia  T.,  S.  &  I.  Co.  r.  Ed- 
ison Electric  Light  Co.,  895. 

Philadelphia.  W.  &  B.  R.  Co.  v. 
Neary,  504. 

Philips  V.  Langhorn,  1573. 

Phillips  V.  Bordman,  811. 

Phillips  V.  City  of  Council  Bluffs, 
1288. 

Phillips  V.  City  of  Detroit,  1434, 
1447. 

Phillips  V.  City  of  Sioux  Falls, 
1492. 

Phillips  V.  Mayor,  86,  87. 

Phillips  r.  Pullen,  133,  135. 

Phillips  V.  Town  of  Albany,   1308. 

Phillips  V.  Walker,  229,  1407. 

Phipps  V.   Jackson,    1126. 

Pickens  v.  Dent,  284. 

Pickering  r.  Stephenson,  1221,  1222. 

Pickert  v.  Ridgefield  P.  R.  Co.,  593. 

Pickett  r.  Filer  Co..  103. 

Pickett  V.  Green,  1160. 

Pickle  t:  Holland,  1652. 

Picotte  v.  Watt,  1248. 

Pidding  v.  How,  1080. 

Piedmont  &  C.  R.  Co.  v.  Spellman, 
602. 

Pierce  v.  Gibson  County,  705,  747. 

Pierce  v.  Wright,  1304,  1305. 

Pierpont  v.  Fowle,  933,  977. 

Pierpont  ;;.  Town  of  Harrisville, 
1291. 

Pierson  v.  Ryerson,  407,  410,  1507. 

Pierson  r.  Truax,  402. 

Piggott  V.  Stratton,  1131. 

Pike  V.  Bates,  1563. 

Pike  V.  Nicholas,  962. 

Pike  M.  Co.  v.  Cleveland  S.  Co., 
1026. 

Pile,  Ex  parte,  23. 

Pile  V.  Pedrick,  676,  679. 

Pillsbury  v.  Humphrey,  467. 

Pillshury  r.  Pillsbury  Flour  Mills 
Co.,  1073. 


ARE    TO    THE    PAGES. 

Pillsbury  v.  Pillsbury  -  Washburn 

F.  M.  Co.,  1078. 
Pillsbury  Mils  Co.  v.  Eagle,  1023, 

1026,  1028. 
Pillsworth  V.  Hopton,  626,  627. 
Pineo  1-.  Heffelinger,  1498. 
Pingle  0.  Conner,  1097. 
Pioneer  Wood  Pulp  Co.  v.  Bensley, 

20. 
Piper  V.  Laughman,  1023. 
Piper  V.  Piper,  642. 
Piscataqua  Bridge  v.  New   Hamp- 
shire Bridge,  855,  870. 
Pitcher  v.  Board  of  Trade,  1195. 
Pithole   P.    C.   Co.   v.   Rittenhouse, 

1571. 
Pitt  V.  Rogers,  125. 
Pittsburg's  Appeal,  1266,  1313,  1315. 
Pittsburg,    F.    W.   &    C.    R.    Co.   v. 

Cheevers,  725,  728,  729. 
Pittsburg,   F.    W.    &   C.    R.    Co.   v. 

Martin,  1537. 
Pittsburg,    etc.,    Ry.    v.    Board    of 

Public  Works,  440,  456. 
Pittsburg,  S.  &  W.  R.  Co.  v.  Fiske, 

662. 
Pixley  V.  Huggins,  350. 
Place  V.  Sweetzer,  1349. 
Placke  V.  Union  D.  R.  Co.,  565,  728. 
Plant  V.  Woods,  1416. 
Planters'     Bank     i\     Laucheimer, 

1502,  1503. 
Planters    Company    Association    r. 

Hanes,   1326. 
Planters  Compress  Co.  r.  More  & 

Co.,  885. 
Planters  &  Merchants  Mutual  In- 
surance Co.,   Ex  parte,   1660. 
Piatt  V.  Archer,  281. 
Piatt  V.  Button,  1013. 
Piatt  V.  McClure.  407. 
Piatt  V.  Threadgill,  137. 
Piatt  r.  Underwood,  64. 
Platto  V.  Deuster,  251. 


TABLE  OF  CASES  CITED. 


CI 


THE  REFERENCES 

Pleasants  v.  Vevay  Company,  1656. 
Plimpton  V.  Spiller,  913. 
Ploughe  V.  Boyer,  714,  1556. 
Plowman  v.  Satterwhite,  413. 
Plumb  V.  Bay,  421. 
Poage  V.  Bell,  43. 
Poe  V.  Decker,  193. 
Poertner  v.  Russell,  653,  1432,  1448. 
Pohlman  v.  Dawson,  1163,  1178. 
Pohlman    v.    Evangelical    Church, 

672. 
Poillon  V.  Volkenning,  1590. 
Poincy  v.  Burke,  141,  346. 
Poindexter  v.  Henderson,  626. 
Poindexter  v.  Waddy,  196,  197. 
Poirier  v.  Fetter,  671. 
Pokegama  Lumber  Co.  v.  Klamath 

Lumber  Co.,  5,  1429,  1430. 
Polini  V.  Gray,  1649. 
Polk  V.  Gardner.  100. 
Pollard    V.    Photographic   Co.,   35, 

950. 
Pollitt  V.  Long,  830,  836. 
Pollock  V.  Lester,  1527. 
Polly  V.  Hopkins,  1278. 
Ponder  v.  Cox,  169,  172. 
Pontius  V.  Winebrenner,  726. 
Ponton  V.  McAdoo,  413. 
Pool  V.  Potter,  39. 
Poole  V.   Falls   R.   E.   R.  Co.,   562, 

564. 
Poor  p.  Carleton,  1547,  1565. 
Pope  V.  Bell,  827. 
Pope  V.  Curl,  965. 
Pope  r.  Inhabitants      of     Halifax, 

1239. 
Pope  Mfg.  Co.  V.  Johnson,  16. 
Poppenhusen  r.  Falke,  900,  904. 
Poppenhusen     r.    New    York,   916, 

920. 
Port  i\  Russell,  493,  1199. 
Port  of  Mobile  v.  Louisville  &  N. 

R.  Co.,  34,  867. 


ARE    TO    THE    PAGES. 

Portarlington  v.   Soulby,    114,    115, 

768. 
Porteous  v.  Snipes,  1600. 
Porter  v.  Clarke,  305. 
Porter  v.  Hopkins,  1637. 
Porter  v.  Jennings,  1502,  1503. 
Porter  v.  Midland  R.  Co.,  619. 
Porter  v.  Morere,  1555. 
Porter  v.  Pico,  350. 
Porter  v.  Rockford,  R.  I.  &  St.  L. 

R.  Co.,  455,  459,  479,  486. 
Porter  v.  Scobie,  375,  380,  1627. 
Porter  v.  Witham,  701,  702,  755. 
Portis  V.  Fall,  29,  86. 
Portland  v.  Baker,  50. 
Portland    Building    Association    v. 

Creamer,  1401. 
Portsmouth   Brewing  Co.  v.  P.   B. 

&  B.  Co.,  15. 
Portsmouth    Turnpike   Co.   r.    By- 

ington,  1619. 
Postal  Telegraph  Co.  v.  N.  &  W.  R. 

R.  Co.,  1428. 
Postal  Telegraph  Co.  v.  W.  U.  T. 

Co.,  1134,  1135. 
Potier's  Executors  v.  Burden,  762, 

765. 
Pott  V.  School  Directors,  815. 
Potter  V.  Crowell,  921. 
Potter  V.  Fuller,  880,  896,  907,  923. 
Potter  V.  Holland,     887,    888,    896, 

914. 
Potter  V.  Howe,  779. 
Potter  V.  Muller,  880,  888,  929. 
Potter  V.  Schenck,  36. 
Potter  V.  Stevens,  906. 
Potter  t\  Village  of  Menasha,  798. 
Potter  V.  Whitney,  883,  896. 
Potts  V.  Levy,  817,  818. 
Poughkeepsie   Gas  Co.   t\  Citizens 

Gas  Co.,  662. 
Poullain  v.  English,  247,  1382. 


Cll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Pound  V.  Supervisors  of  Chippewa 

Co.,  514. 
Pounder  c.  Ashe,  302,  303. 
Powel  V.  Follet,  1432. 
Powell  V.  Aiken,  678,  679. 
Powell  V.  Allarton,   1103. 
Powell  V.  Brown.  1501. 
Powell  V.  Chamberlain,  100,  101. 
Powell  V.  Cheshire,  644. 
Powell  V.  Foster,  710. 
Powell  V.  Hopkins,  412,  431. 
Powell  ;;.  Lassalette,  1559. 
Powell  V.  Lloyd,  1104. 
Powell  V.  Parker,  36. 
Powell  V.  Parkersburg,    499. 

Powell  V.  Quinn,   324. 

Powell  V.  Rawlings,  687,  691. 

Powell  V.  Redfield,  96,  489. 

Power   V.   Village   of  Athens,   874, 
875. 

Powers  V.  Bears.   552,  602,  603. 

Powers  r.  Waters,  99. 

Power's  Appeal,  843. 

Poyer   v.   Village   of   Des  Plaines, 
33,  75,  1253,  1611. 

Poyntz  V.  Shackelford,  1331. 

Prader  r.  Grim,  1629. 

Prader  v.   Grimm,  1636. 

Pratt  V.  Brett,  393,  398,  655. 

Pratt  V.  Lamson,  766. 

Pratt  r.  Raymond,  445. 

Pratt  r.  Roseland  R.  Co.,  602,  604. 

Pratt's  Appeal,  1071. 

President  r.  Baltimore,  C.  &  E.  M. 
P.  R.   Co.,  102,  621. 

President  v.  Trenton  C.  B.  Co.,  858, 
872. 

President  and  Trustees  v.  Moore, 
712. 

Preston  r.   .Tohnson,  460. 

Preston  r.  Kindrirk,  261. 

Preston  r.  Preston,  671. 

Pretecea   r.   Maxwell   Land   Grant 
Co..  669. 

Price  r.  Clevengcr,   1517. 

Price  V.  Johnson  Co.,  150. 


ARE    TO    THE    PAGES. 

Price  V.  Joliet  Steel  Co.,  16,  910. 
Price  V.  Knott,  785. 
Price  V.  Oakfield  H.  C.  Co.,  735. 
Price  r.  St.  Louis  Mutual  Life  In- 
surance Co.,  1192. 
Price  Baking  Powder  Co.  v.  Fyfe, 

1044. 
Price's  Ex'rs  if.  Ayres,  367. 
Prickett  v.  Tuller,  1514. 
Priddie  i:  Thompson,  1330. 
Prieth  r.  Campbell  P.  &  M.  Co.,  903. 
Primmer  r.  Patten,  1545. 
Prince  r.  McCoy,  569,  725,  727. 
Prince  Albert   r.   Strange,   26,  950, 

965,  971,  995,  996. 
Prince  Mfg.  Co.  r.  Princes  Metallic 

Paint,  1079. 
Pritchard  v.  Sanderson,  413. 
Probasco  r.  Probasco,  1429. 
Proctor  r.  Bayley,  921. 
Proctor  i:  Pettitt,  169. 
Proprietors  v.  Braintree  W.  S.  Co., 

829. 
Pi'otheroe  r.  Forman,  267. 
Prout  r.  Gibson,  244,  378. 
Prout  V.  Lomer,  1113,  1572,  1655. 
Providence,   F.   R.   &   N.   S.  Co.  r. 

City  of  Fall  River,  672. 
Provolt  r.  Chicago,  R.  I.  &  P.  R. 

Co.,  606,  607. 
Prowett  i\  Mortimer,  1086. 
Prudential  Assurance  Co.  r.  Knott, 

968. 
Prudential       Assurance       Co.      r. 

Thomas,  70. 
Prugh      IK      Portsmouth      Savings 

Bank,   253. 
Puckette  r.  Hicks,  1653. 
Pugh  V.  Irish,  451. 
Pugh's  Adm'r  r.  White,  1597. 
Piillan  r.  Cincinnati  &  Chicago  Air 

Line  R.  Co.,  585. 
Pullen   r.   Baker,  1483.  1542. 
Pullman  v.  Bait.  &  0.  R.  Co.,  885. 
Pullman  r.  Mayor,  1267. 


TABLE  OF  CASES  CITED. 


cm 


THE    REFERENCES 

Pullman   P.   C.   Co.    r.   Central   T. 

Co.,  100. 
Pullman  P.  C.  Co.  v.  Missouri  P. 

R.  Co.,  598. 
Pullman  P.  C.  Co.  v.   Texas  &  P. 

R.  Co.,  598. 
Pulte  V.  Derby,  947. 
Pulteney  v.  Shelton,  393,  655, 
Pulteney   v.   Warren,   639. 
Punt  V.  Symons,  1230. 
Purnell  v.  Daniel,  11,  1504,  1568. 
Purnell  v.  Vaughan,  411,  413. 
Pusey  V.  Bradley,  67. 
Pusey  V.   Pusey,   428. 
Pusey  V.  Wright,  1092,  1093. 
Putnam  v.  City   of   Grand   Rapids, 

1277. 
Putnam  v.  Keystone  B.  S.  Co.,    895. 
Putnam  v.  Sweet,  861. 
Putnam  r.  Valentine,  784,  815, 1529. 
Pyecroft  r.  Pyecroft,  1506. 
Pyle  t'.  Brenneman,  443,  497. 


Q 


Quackenbush    r.    Van    Riper,    771, 

1428,  1519. 
Quartz  Hill  C.  G.  Co.  i\  Beall,  969. 
Quayle  v.  Bayfield  County,  1502. 
Queensberry  r.  Shebbeare,  965. 
Questel  v.  Questel,   1390. 
Quincy  v.  Cheeseman,  423. 
Quinlan  r.  Myers,  525. 
Quinn  v.  Wetherbee,  210. 
Quinney   r.   Town   of   Stockbridge, 

482. 
■Quint  V.  Hoffman,  468. 

E 

Radcliffe  v.  Duke  of  Portland,  825. 
Radde  v.  Norman,  1026. 
Radford's    Ex'rs   v.    Innes'    Execu- 
trix, 53,  1511,  1571. 
Padican  v.  Buckley,  747. 


ARE    TO    THE    PAGES. 

Raggett  v:  Findlater,  1021. 
Ragland  v.  Cantrell,  248. 
Railroad  v.  Greer,  234. 
Railroad    Co.    v.    Telegraph    Co., 

1095. 
Railroad  &  Telephone  Co.  v.  Board 

of  Equalizers,  20,  476. 
Railway  Co.  v.  Lawrence,  561,  614. 
Railway  Co.  v.  McShane,  504,  507. 
Railway  Co.  v.  Prescott,  504,  507. 
Railway  Co.  v.  Ryan,  167,  176,  226. 
Raincock  v.  Young,  1573. 
Raines  v.  Dunning,  692. 
Raisin  Fertilizer  Co.  r.  McKenna, 

148.  222,  224. 
Raleigh  «S;  Western  Ry.  Co.  v.  G. 

&  G.  M.  &  M.  Co.,  26,  1595. 
Ralston  v.  Miller,  366. 
Ramsdall  v.  Craighill,  23. 
Ramsdell  v.  T.  W.  P.  Co.,  421. 
Ramsey  v.  Hoeger,  479. 
Randall  v.  Carpenter,  1681,  1635. 
Randall  v.  Morrell,  1362. 
Randfield  r.  Randfield,  90. 
Randolph  v.  Randolph,  1477. 
Ranft  V.  Reimers,  1164,  1169,  1358. 
Ranger  v.   Great  Western   R.   Co., 

1121. 
Ranger  v.  New  Orleans,  1241. 
Rankin  r.  Estes,  1609. 
Rankin  v.  Huskisson,   1132. 
Rankin  v.  Rankin,  425. 
Ransom  v.  Shuler,  1475. 
Rantzen  v.  Rothschild,  1449. 
Raphael  v.  Thames  Valley  R.  Co., 

1118. 
Rapp  V.  Williams,  92. 
Ratto  V.  Levy,  135,  148. 
Raupman    v.    City   of  Evansville, 

1630. 
Ravenswood  r.  Flemings,  724. 
Rawson  r.  Samuel.  105,  236. 
Rayle  r.  Indianapolis,  P.  &  C.  R. 

Co.,  1660. 


CIV 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Raymond   v.   Boston  Woven  Hose 

Co.,  884. 
Raymond  r.  Conger,  167,  1640. 
Raymond  v.  Royal  Baking-Powder 

Co.,  1044,   1079,  1669. 
Rea  V.  Longstreet,  350,  1385. 
Read  v.  Bowers,  1354. 
Reade  v.  Armstrong,  1097. 
Reade  r.  Conquest,  973,  978. 
Reade  v.  Lacy,  1002. 
Ready  Roofing  Co.  v.  Taylor,  1471. 
Reagan  v.  Farmers'  Loan  &  Trust 

Co.,  596. 
Reagan  r.  Fitzgerald,  211. 
Real  Estate  T.  Co.  v.  Hatton,  25, 

433. 
Real   Mining   Co.    v.   Pond  Mining 

Co.,  695. 
Reavis  v.   Reavis,  385,  386. 
Reboul's   Heirs    v.    Behrens,     1488, 

1540,  1541. 
Receivers  v.  Biddle,  1475,  1562. 
Reckner  r.  Warner,  554. 
Red  V.  Johnson,  508. 
Redd  V.  Blandford,  70,  1372. 
Reddall  r.  Bryan,  17,  22. 
Reddaway  v.   Banham,  1025,   1027, 

1030. 
Red   Polled    C.    C.    of    A.     r.     Red 

Polled   C.  C.  of  A.,    1057,    1059, 

1071. 
Redway  v.   Moore,   725,  749. 
Redwine  v.  McAfee,  169. 
Reece  v.  Northway,   1631. 
Reed  v.  Holliday,  978,  979. 
Reed  v.  Jones.  1232. 
Reed  v.  Lewis,  1134. 
Reed  v.  Mayor,  782. 
Reed  v.  Patterson,  413. 
Reed  r.  Tioga  Manufacturing  Co., 

360,  371. 
Reed  Mfg.  Co.  r.  Smith  &  W.  Co., 

884. 
Reemelin  v.  Mosby,  14,  1326,  1331. 


ARE    TO    THE    PAGES. 

I  Rees  V.  Berrington,  1375,  1376. 
j  Rees  V.  Peltzer,   1618. 
j  Reese,  In  re,  1423,  1451. 
!  Reese  v.  Smith,   328. 

Reese  v.  Walton,   154. 

Reeser  v.  Johnson,  279. 

Reeves  r.  Cooper,  218. 

Reeves  v.  Dickey,  380. 

Reeves  v.  Oliver,  4,  5,  1644. 

Reeves  &  Co.  v.  Sprague,  1184. 

Reichert  v.  Geers,  736. 

Reid  V.  Gifford,   719,  751,   752,  832, 
84L 

Reid  V.  Moulton,  1325,  1328. 

Reiley  v.  Johnston,  270. 

Reilly  i\  Otto,  1136. 

Reily   v.  Miami  E.  Co.,  244,  354. 

Reimer's  Appeal,  731. 

Reinecke  C.  M.  Co.  v.  Wood,  1410, 
1413. 

Reinhardt  r.  Mentasti,  746. 

Reisner  v.  Strong,  593. 

Rembert  v.   Brown,  64,  1108,  1109, 
1477,    1478. 

Remington  r.   Foster,  709. 

Remshart     v.     The     Savannah     & 
Charleston  R.  Co.,  619,  1552. 

Renard  v.  Levinstein,  881. 

Rend  r.  Venture  Oil  Co.,  15. 

Rensselaer  v.  Emery,  1360. 

Rensselaer  &  S.  R,  Co.  r.  Benning- 
ton &  R.  R.  Co.,  123. 

Rentfroe  v.  Dickinson,  1475. 

Renton  r.  Chaplin,  1362. 

Republic   Life  Ins.  Co.  r.  Pollock^ 
455. 

Revell  V.  The  People.  722,  723. 

Rex  V.  Cross,   736. 

Rex  r.  Pease,  731. 

Rex  r.  Ward,   723. 

Reybourn  v.  Sawyer,  1657. 

Reynell   r.  Sprye,  1546. 

Reynolds  r.  Brendenthal,  1232. 


TABLE  OF  CASES  CITED. 


ev 


THE  REFERENCES 

Reynolds  r.  Clarke,  701. 
Reynolds  v.  Drainage  District,  445. 
Reynolds  v.  Everett,   37,   1417. 
Reynolds  v.  Faris,  539. 
Reynolds  v.  Horine,  217,  218. 
Reynolds  v.  Howard,  379. 
Reynolds  v.  Iron  S.  M.  Co.,  1659. 
Rhea  v.  Forsyth,  702. 
Rhea  v.  McCorkle,  1617. 
Rheiner  v.   Union   D.    S.    R.   &   T. 

Co.,  618. 
Rhodes  v.  Cousins,   1397,  1398. 
Rhodes  v.  Driver,  1331. 
Rhodes  v.  Dunbar,  705,  707,  754. 
Rhodes  v.  Lee,  1499. 
Rhodes  i\  Union  Bank,  1558. 
Rhodes  B.   F.   Co.   v.   Mattox,   216, 

219. 
Rhymer  t'.  Fretz,  725. 
Ricard's  Heirs  v.  Hiriart,  1542. 
Riccard  r.  Prichard,  1401. 
Rice  'V.  D'Arville,  1149,  1151. 
Rice  V.  Rail  Road  Bank,  188. 
Rice  V.  Smith,  1336. 
Rice  V.  Tobias,  166,  222,  224. 
Rice  r.  Winslow,  89. 
Rich  i\  Dessar,  1543. 
Rich  V.  Levy,   1397. 
Rich  V.  Thomas,  1480,  1508. 
Richard's  Appeal,  716. 
Richards,     Ex     Parte,     1422,  1423, 

1432. 
Richards  r.   Daugherty,  802. 
Richards  v.  Des  Moines  V.  R.  Co., 

602,  605,  606. 
Richards  r.  Dower,  672. 
Richards  v.  Kirkpatrick,  43. 
Richards  v.  Northwest    P.    D.    Ct, 

813. 
Richards  v.  West,  1425,  1427,  1470. 
Richardson,  In  re.  273,  276. 
Richardson  v.  Allen,     1596,      1624, 

1629. 
Richardson  v.  Ardley,   397. 


ARE    TO    THE    PAGES. 

Richardson  r.  City  of  Eureka,  718. 
Richardson  r.  Dinkgrave,    1554. 
Richardson  r.  Emmert,  1163,  1179. 
Richardson  -v.  Lightcap,  1506. 
Richardson     /;.     Methley      School 

Board,  1326. 
Richardson  r.  Murphy,    46. 
Richardson  v.  Peacock,   1157,  1169, 

1170. 
Richardson  v.  Prince,  155. 
Richardson  v.  Stephens,  387. 
Richardson  r.  Williams,  375. 
Richi  ('.  Chattanooga  Brewing  Co., 

562,  780,  793. 
Richmond  v.  Atwood,  1669,  1670. 
Richmond  v.  Dubuque  &   S.  C.   R. 

Co.,  59,  1097. 
Richmond  M.  Co.  v.  De  Clyne,  885. 
Richmond  &  S.  R.  Co.  v.  Shippen, 

207,  234. 
Richter  v.  Kabat,  311. 
Rickard  v.  Caton  C.  Co.,  1025. 
Ricker  v.  Douglas,  1577. 
Ricker  v.  Pratt,  363. 
Rickets  v.  Kitchens,  140. 
Rickett  V.  Johnson,  251. 
Ricketts  v.  Ricketts,  1390. 
Ricketts  v.  Spraker,  449. 
Rickey  v.  Williams,  1271. 
Riddle  v.  Cheadle,  1631. 
Riddle  v.  Town  of  Charleston,  516, 
Riddlesbarger  v.  McDaniel,  1622. 
Ridgeway  v.  Bank,  214,  225. 
Riedinger  t?.  Marquette  &  Western 

R.  Co.,  614. 
Riemer  v.  Johnke,  635. 
Rigby   v.    Great   Western    R.    Co., 

1119. 
Riggin  V.  Mulligan,  244,  354. 
Riggins  V.  Thompson,  7. 
Riggs  V.  Johnson  Co.,  128. 
Rigney  r.  Tacoma  L.  &  W.  Co.,  16, 

760. 
Rigsbee  v.  Town  of  Durham,  1502. 


-tJVl 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Riley  v.  Ellmaker,  193. 

Riley  r.  Western  Union  Telegraph 

Co.,  485. 
Rillet  V.  earlier,  1044. 
Rio  Grande  R.  Co.  v.  Scanlan,  444, 

449,  451,  468,  1627. 
Risher  v.  Roush,  207. 
Ritchie    v.   City  of  South   Topeka, 

524,  525. 
Ritter  v.  Patch,  457. 
Ritter  r.  Ulman,  1644. 
River  Dun  N.  Co.  v.  North  M.  R. 

Co.,  602. 
Rivers  r.  Burbank,  332. 
Riverside    Oil    Co.     v.     Hitchcock, 

1338. 
Rives  f.  Rives,  232,  237. 
Roake  r.  American  T.  Co.,  789. 
Roath  V.  Driscoll,  837,  841. 
Robb  V.  Village  of  La  Grange,  709. 
Robbins   v.    Sand   Creek   Turnpike 

Co.,  531,  546. 
Robenson  v.  Ross,  1653. 
Roberson  v.  Rochester    F.  B.  Co., 

34. 
Robert  r.  Sadler,  681. 
Roberts   r.    Anderson,     1499,    1524, 

1565,   1566. 
Roberts  v.  Bozon,  1526. 
Roberts  v.  City     of     Fargo,     1238, 

1268. 
Roberts  v.  City  of  Louisville,  1252. 
Roberts  v.  Clark,  1042. 
Roberts  v.  Davidson,  50. 
Roberts  r.  Dust,  1605,  1621. 
Roberts  v.  Fahs,   1618. 
Roberts  v.  Gwyrfai  District  Coun- 
cil, 760. 
Roberts  v.  Jordans,  1495. 
Roberts  v.  Mayor,  1237,  1240. 
Roberts  r.  McKee,   1359. 
Roberts  v.  Meyers,     992,     993,    997, 

1001,  1014. 
Roberts  v.  Sheldon,  1078. 


ARE    TO    THE    PAGES. 

Roberts  v.  White,  1626. 

Robertson  'V.  Breedlove,   1287. 

Robertson  v.  Bullions,  296. 

Robertson  v.  Hill,  895. 

Robertson  v.  Hogsheads,    379,   409. 

Robertson  r.  Meadors,  642. 

Robertson  v.  Robertson,    1637. 

Robertson  v.  Smith,   1602. 

Robeson  v.  Pittenger,  826. 

Robinson  v.  Baugh,  735,  743,  757. 

Robinson  v.  Braiden,  74. 

Robinson  'V.  Byron,  4,  679,  801. 

Robinson  t\  Cathcart,  1477,  1478. 

Robinson  v.  City  of  Wilmington, 
441,  456,  1665. 

Robinson  v.  Gaar,  500. 

Robinson  v,  Heuer,  1152. 

Robinson  v.  Hughes,  402. 

Robinson  r.  Jefferson,  1108,  1109. 

Robinson  r.  Joplin,   357,   358. 

Robinson  v.  Litton,  650,  651,  658. 

Robinson  v.  Maguire,  410. 

Robinson  v.  Preswick,  435,  657, 
658. 

Robinson  v.  Reid's  Ex'rs,   1178. 

Robinson  v.  Russell,  434,  658. 

Robinson  v.  Storm,    1037,    1073. 

Robrecht  v.  Robrecht,  1502. 

Robuck  V.  Harkins,  133. 

Rochdale  Canal  Co.  v.  King,  844. 

Rochester  v.  Erickson,  731,  732, 
765. 

Rochester,  H.  &  L.  R.  Co.  r.  New 
York,  N.  E.  &  W.  R.  Co.,  589. 

Rock  r.  Mathews,  1549. 

Rock  Island  &  P.  R.  Co.  r.  John- 
son, 613. 

Rock  Spring  Distillery  Co.  v.  Mon- 
arch,  1041. 

Rockingham  Savings  Bank  v. 
Portsmouth,  444,  456. 

Rockwell  V.  Bowers,  569. 

Rockwell  V.  Lawrence,  1516. 

Rodahan  r.  Driver,  1520. 


TABLE  OF  CASES  CITED. 


evil 


THE    REFERENCES 

Hodenhausen  v.  Craven,  736. 
Rodger,  In  re,  288. 
Rodgers  v.  Nowill,  1071,  1088,  1462. 
Rodgers  v.  Pitt,    1426,    1428,    1429, 

1430,  1437. 
Rodgers  v.  Rodgers,  155. 
Roebling   r.   First  National   Bank, 

669. 
•Roebling  v.  Stevens  Co.,  180. 
Roelker  v.  St.  Louis  R.  Co.,  615. 
Rogers  v.  Bradford,  1478. 
Rogers  v.  Cross,  65,  315,  316. 
Rogers  v.  Danforth,  395. 
Rogers  v.  Evarts,    1420. 
Rogers  v.  Haines,  178. 
Rogers  r.  Holyoke,  417. 
Rogers  v.  Lafayette      Agricultural 

Works,  1217. 
Rogers  v.  Maddocks,  1157. 
Rogers  v.  Michigan  S.   &  N.  I.   R. 

Co.,  14. 
Rogers  r.  Michigan     Southern     R. 

Co.,  432. 
Rogers  v.  O'Brien,  15. 
Rogers  v.  Rathbun,   93,    1100. 
Rogers  v.  Rogers,  84. 
Rogers  v.  Tennant,  1474. 
Rogers  v.  Week   Lumber  Co.,   736, 

754,  1555. 
Rogers    Co.    r.   Wm.    Rogers    Mfg. 

Co.,  1040,  1041. 
Rogers  L  &  M.  Works  v.  Erie  R. 

Co.,  4. 
Rogers   Mfg.   Co.    v.    Rogers,   1154, 

1425,  1460,  1467,  1468. 
Roland  Park  Co.  v.  Hull,  103. 
Rolfe  r.  Patterson,  1121. 
Rolfe  V.  Rolfe,  1154,  1157. 
Rollins  V.  Hess,   186. 
Rollins  V.  Hinks,  969. 
Roman  v.   Strauss,   845. 
Romero  r.  Munos,  336. 
Root  V.  Railway  Co.,  890,  926. 
Roper  V.  Streater,  954. 


ARE    TO    THE    PAGES. 

Roper  V.  Williams,  1103,  1144. 

Roper  Lumber  Co.  i\  Wallace,  687. 

Rorke  v.  Russell,  1195,  1434. 

Rose  v.  Garrett,  568. 

Rose  V.  Post,  1629. 

Rose  V.  Rose,   1391. 

Rosenberg  v.  Moore,    1397,    1398. 

Rosenberg  v.  Weekes,  468. 

Rosenberger  v.  Bowen,  217. 

Rosendorf  /;.  Mandel,  1603. 

Rosenfield  v.  Gilmore,  1493. 

Roshell  i\  Maxwell  Hemp.,  252. 

Roshi's  Appeal,  293,  294. 

Ross  V.  Butler,   735. 

Ross  V.  City  .of  Ft.  Wayne,  926. 

Ross  V.  Elizabeth  R.  Co.,  602,  605, 
1189,   1524. 

Ross  r.  Gordon.   1627. 

Ross  V.  Page,  669. 

Ross  ?'.  Thompson,  781. 

Rotan  V.  Springer,  148. 

Roth  V.  Insley,  349,  350,  402. 

Roth  V.  Marshall,  1245,  1246. 

Rothenburg  v.  Vierath,  1543. 

Rothrock  v.  Carr,  1238,  1239,  1313, 
1315. 

Rothwell  V.  County  of  Knox,  482, 
490. 

Rotzein  v.  Cox,   219. 

Roudanez  r.  Mayor  of  New  Or- 
leans, 530. 

Round  Lake  Assn.  r.  Kellogg,  1128. 

Rounsaville  r.  Kohlheim,  705,  707. 

Rountree  v.  Walker,  219. 

Rouse  V.  Martin,  705,  707,  708. 

Rousillon  V.  Rousillon,  1158,  1175. 

Routh  V.  Webster,  1076,  1085,  1352. 

Rowan  v.  Ide,  1663,  1664. 

Rowbotham   v.   Jones,  719. 

Rowe  V.  Peabody,  470. 

Rowland  t\  First  School  District. 
448.    ■ 

Rowland  v.  Jones,  204. 

Rowland  v.  Miller,  1136,   1138. 


CVlll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Rowland  v.  Ransome,  1644. 
Rowzee  v.  Pierce,  1293. 
Royal  B.  P.  Co.  v.  Davis,  1083. 
Royal  Baking  Powder  Co.  v.  Roy- 
al, 1037,  1042. 
Ruble   V.   Coyote  G.   &  S.  M.   Co., 

1582. 
Rucker  r.  Langford,  169,  241. 
Ruffner   v.    Phelps,    725. 
Ruffners  v.  Barrett,  1483. 
Ruge  V.  A.  O.  C.  &  F.  Co.,  1542. 
Ruggles  V.  Simonton,  255. 
Ruggles     V.     Southern     Minnesota 

Railroad,   423. 
Ruhland   v.  Jones,  1292. 
Rumford  Chemical  Works  v.  Muth, 

1020. 
Rumford  Works  v.   Vice,  911,  919, 

921. 
Rundell  v.  Murray,  982,  983. 
Rusk  V.  Berlin,  517. 
Russell  V.  Cleary,  151. 
Russell  V.  Farley,  1607,   1628. 
Russell   V.  Green,  468. 
Russell  V.  Kern,  926. 
Russell  V.  Napier,  846. 
Russell  V.  O'Dowd,   179. 
Russell  v.  Rogers,  1611. 
Russell  r.  Wilson,  1483. 
Russia    Cement    Co.    v.     Le    Page, 

1039. 
Rust  r.  War,  137. 
Rutherford  (;.  Taylor,  813. 
Ruthven  Brothers  r.  Mast,  421. 
Rutland  E.  L.  Co.  v.  M.  C.  E.  Co., 

577. 
Rutz  V.  Calhoun,  535. 
Ryan  v.  Anderson,  1629. 
Ryan  v.  Board   of   Commissioners, 

444. 
Pvyan  r.  Boyd,  223,  224. 
Ryan  r.  Tirown,  1191. 
Ryan  ;;.  Cudaliy,  1196. 
Ryan  r.  Hamilton,  1162,  1163,  1181. 


ARE    TO    THE    PAGES. 


s 


Sabloniere  Hotel  Co.,  In  re,  1197. 

Sacket  v.  Hill,  1567. 

Sackett  v.  City  of  New  Albany, 
1276. 

Sackett  v.  Hillhouse,  64,  1108,  1109. 

Safford  v.  The  People,  1438. 

Sage  V.  Town  of  Fifield,  520. 

Sainter  v.  Ferguson,  1121,  1182. 

Saint  Johns  National  Bank  v. 
Township  of  Bingham,  100. 

Sallis  V.  McLearn,  269. 

Salmon  v.  Clagett,  433,  434,  657, 
658,  1486,  1564. 

Salomon  v.  Hertz,  26,  27. 

Salomons  v.  Laing,  1204,  1221,  1222. 

Salschneider  v.  City  of  Fort  How- 
ard, 480. 

Salvin  v.  North  Brancepeth  Coal 
Co.,  738. 

Samis  v.  King,  1320,  1497. 

Samson  v.  Burton,  273,  276,  277. 

Samuel  t'.  Berger,  1035. 

Samuel  v.  Buger,  1035,  1084. 

Samuell  v.  Howarth,  1375,  1376. 

Sanborn  M.  &  P.  Co.  r.  Dakin  Pub- 
lishing Co.,  959. 

Sanchez  v.  Carriaga,  220. 

Sand  Creek  Turnpike  Co.  v.  Rob- 
bins,  1543. 

Sanderlin  v.  Baxter,  809. 

Sanders  v.  Foster,  316. 

Sanders  v.  Logan,  880,  912. 

Sanders  v.  Metcalf,  63,  262,  1272. 

Sanders-Clark  v.  Grosvenor  Man- 
sions Co.,  746. 

Sanderson  v.  Stockdale,  1351. 

San  Diego  Water  Co.  r.  Pacific 
Coast  Steamship  Co.,  1634. 

Sanford  v.  Poe,  18,  467. 

Sang  Lung  i).  Jackson,  19. 

San  Juan  &  St.  L.  M.  &  S.  Co.  v. 
Finch.  150,  222,  223. 


TABLE  OF  CASES  CITED. 


CIX 


THE    REFERENCES 

Sankey  r.  St.  Mary's  Female  Acad- 
emy, 828. 
Sanquirico  v.  Benedetti,  1148. 
Sapp  V.  Roberts,  678. 
Sare  v.   Butcher,   149. 
Sargent  v.   George,  784. 
Sargent  r.  Seagrave,  914. 
Sargent     Manufacturing      Co.      v. 

Woodruff,  903,  919,  920. 
Sarles  v.  Sarles,  652. 
Sartor  t\   Strassheim,  1606. 
Satterfield  r.  John,  40,  1499. 
Sauer  v.  City  of  Kansas,  148. 
Sauerhering  v.  Iron  Ridge  R.  Co., 

1307. 
Saull  V.  Browne,  86. 
Saunders  v.  Bluefield  W.  Co.,  760. 
Saunders  v.  Huntington,  103. 
Saunders  v.  Irwin,  1350. 
Saunders  v.  Jennings,  208. 
Saunders  r.  Smith,  932,  982,  983. 
Saunders  v.  Webber,    1387. 
Sautee  River  Cypress  Lumber  Co. 

V.  James,  664,  688. 
Sauvinet  /;.  Poupono,  1542. 
Savage  v.  Allen,  381,  382. 
Savage  v.  Ball,  96. 
Savannah,  F.  &  W.  R'y  v.  Morton, 

478. 
Savannah  R.  Co.  v.  Coast  Line  R. 

Co.,  867. 
Savannah    &    Thunderbolt    R.    Co. 

V.    The    Mayor,    1294. 
Savidge  v.  Village  of  Spring  Lake, 

1238. 
Savings  &  Loan  Society  v.  Austin, 

444,  458. 
Savoie  v.  Thibodaux.  176,  177,  1488. 
Savory  v.  Dyer,  1545. 
Sawyer,  In  re,   86,   88,  1325,  1329, 

1435. 
Sawyer  v.  Davis,  731. 
Sawyer  v.  Horn,    1048. 
Sawyer  v.  Kellogg,  1048. 


ARE    TO    THE    PAGES. 

Sawyer  Spindle  Co.  v.  Taylor,  898, 

911. 
Sawyer    Spindle     Co.     v.     Turner, 

895,  921. 
Saxlehner  v.  Apollinaris  Co.,  1071. 
Sayers  v.  Collyer,  1143. 
Sayles  v.  Mann,  1388. 
Saylor  r.  Mockbie,  1364. 
Sayre,  Ex  parte,  1553. 
Sayre  v.  Tompkins,  441. 
Sayre's  Adm'r  v.  Harpold,  237. 
Scarlett  v.  Hicks,  1405,  1491,  1581. 
Schaaf  v.  C,  M.  &  S.  R.  Co.,  565. 
•Schackle  v.  Baker,  165. 
Schaefer  v.   Hunnewell,  1644. 
Schaffner  v.  Young,   482. 
Schaidt  v.  Blaul,  850. 
Schalk   V.   Schmidt,   1522,   1526. 
Schall  r.  Nusbaum,  725. 
Schanck  v.  Executors  of  Schanck, 

1368. 
Schaudler   Bottling  Co.    r.   Welch, 

88. 
Schaufele  /'.  Doyle,  782. 
Scheck  V.  Kelly,  1608. 
Schell  i\  Erie  R.  Co.,  70. 
Scheming  v.   Cofer,  1636. 
Scherck  v.  Montgomery,  1219. 
Schermehorn  v.  L'Espenasse,  1476. 
Schermerhorn     v.     Merrill,      1491, 

1517. 
Schettler  v.  City  of  Fort  Howard, 

480,  481. 
Scheuer  v.  Muller,  1048,  1083. 
Schewde    v.    Heinrich    Bros.,    780, 

781. 
Schiffman  v.  City  of  St.  Paul,  1263. 
Schilling  v.   Reagan,   176,   1646. 
Schlecht's  Appeal,  339. 
Schlitz  Brewing  Co.  v.  City  of  Su- 
perior, 88. 
Schmaltz  v.  York  Mfg.  Co.,  49. 
Schmidt  t\  Foucher,  1653. 
Schmitt  V.  Cassilius,  394. 


ex 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Schneider  v.  City  of  Rochester, 
1642. 

Schock  V.  Falls  City,  670. 

Schofield   V.   Watkins,    444. 

School  Directors  v.  School  Direct- 
ors, 44Sr,  479. 

School  District  No.  1  v.  Shadduck, 
12S2. 

School  District  v.  Weise,  1332. 

School  Trustees  v.  School  Direct- 
ors, 1245,  1246. 

Schoonover  v.  Bright.   669.  687. 

Schocnover  v.  Condon,  424. 

Schopp  V.   City   of   St.   Louis,   785. 

Schroeder  v.  Fromme,  269. 

Schubach  v.  McDonald,  600. 

Schuffert  v.  Grote,  1652. 

Schulenburg  B.  L.  Co.  r.  St.  L.,  K. 
&  N.  R.   Co.,  793. 

Schumacher  v.  Toberman,  1279, 
1289. 

Schumm  r.  Seymour,  1238,  1241, 
1244,  1261,  1262,  1264. 

Schurmeier  r.  St.  Paul  &  P.  R. 
Co.,  561,  669,  681,  690. 

Schuster  v.  Metropolitan  Board  of 
Health,  713,  1259. 

Schuster  v.  Myers,  1552. 

Schuyler  v.  Curtis,  34. 

Schuyler  r.  Pelissier,   127. 

Schwab,  Ex  varte,  23. 

Schwab  V.  City  of  Madison,  176, 
177. 

Schwarz,  In  re,  1446. 

Schwarz  v.  Sears,  1476. 

Scinvarz  r.  Superior  Court,  1648. 

Scobey  v.  Decatur  County,  533. 

Scobey   v.    Walker,    240,    344. 

Scofield  V.  Bokkelen,   11. 

Scofield  r.  City  of  Lansing,  499, 
546. 

Scofield  r.  ICiRhth  School  District, 
1282. 

Scofield  r.  Lansing,   499,   546. 


ARE    TO    THE    PAGES. 

Scofield  V.  Perkerson,  1338,  1340. 

Scofield  v.  Railway    Co.,    595. 

Scofield  V.  State  National  Bank, 
1655. 

Scogin  V.   Beall,   161. 

Scott  V.  Burton,  11. 

Scott  V.  Donald,  1344,  1526. 

Scott  V.  Hartman,  1504. 

Scott  I'.  Knightstown,  492. 

Scott  V.  McGuire,  1272. 

Scott  r.  Palms,  853. 

Scott  V.  Paulen,    1274. 

Scott  V.  Runner,  252. 

Scott  V.  Shreeve,  185. 

Scott  V.  Silvers,  333. 

Scott  V.  Smith,  1253,  1254. 

Scott  V.  Standard  Oil  Co.,  1022. 

Scott  V.  Stanford,  946. 

Scott  V.  Wharton,  659. 

Scott  V.  Whitlow,  149. 

Scottish  Union  Insurance  Co.  v, 
Mohlman,  81. 

Scottish  Union  &  National  Insur- 
ance Co.  r.  Bowland,  100,  456. 

Scribner  v.  Allen,  543. 

Scudder  v.  Trenton,  627. 

Scull   V.  Reeves,  1517. 

Scully   V.   Rose,   693. 

Scurlock  V.  Scurlock,  202. 

Seabrook  v.   Mostowitz,   1653. 

Seabury  v.   Grosvenor,   1080. 

Seager  v.  Cooley,  109. 

Seager  v.  Kankakee  Co.,  725,  1312, 
1317. 

Seago  ('.  Bass,  370. 

Sea  Insurance  Co.  r.  Stebbins,  423. 

Seaman  v.  Lee,   779. 

Searing  v.  Heavysides,  479,  482, 
490. 

Searle  v.  Abraham,   1267. 

Searle  v.  City  of  Lead,   559. 

Sears  r.  Hotchkiss,  1191.  1204,  1206,,. 
1213,  1222. 

Seaward  r.  Paterson,  1451. 


TABLE  OF  CASES  CITED. 


cii; 


THE    REFERENCES 

Secombe  t'.  Kittelson,  1338. 
Secor  r.   Singleton,   1461. 
Security  Loan  Association  v.  Lake, 

408. 
Sedalla  Brewing  Co.  v.  Sedalia  W. 

W.  Co.,  5,  1106. 
Sedgwick  v.  Menck,  273,  280. 
Sedgwick  v.  Redman,  1449. 
Seebold,  In  re,  284. 
Seebor   v.   Hess,    1515. 
Seeger  v.  Mueller,  847. 
Seeley  v.  Fisher,  974,  1082. 
Seighortner  v.  Weissenborn,  1362. 
Seiler  v.   Fairex,   1093. 
Seller   v.   Fuller   &   Johnson   Mfg. 

Co.,  886. 
Seixo    V.    Provezende,    1033,    1049, 

1073,  1075. 
Selby  V.  Crystal    Palace    Gas    Co., 

1120. 
Selby  V,  Nettlefold,  852. 
Selchow  V.  Baker,  1043. 
Selden  v.  Vermilya,    1559. 
Selden  v.  Vermilyea,  320. 
Self  V.  Jenkins,  1309. 
Seligman  v.  Ferst,  1402. 
Selma     Building     Association     v. 

Morgan,  482. 
Semmes  r.  Mayor,  1476. 
Seneca  Falls  r.  Matthews,   1548. 
Senior  v.  Pawson,  820. 
Senter  v.   Hill,  362,   365,  370. 
Serrell  v.   Collins,  907. 
Service  v.  Castaneda,  1536. 
Sesinig  v.  Perry,  1630. 
Sessions  v.  Gould,  918,  1667. 
Severns  v.  Woolston's  Ex'rs,  414. 
Seward   v.   Town  of  Liberty,  1245. 
Sexsmith  v.  Smith,  524,  525. 
Seymour  v.  City  of  Tacoma,   1276. 
Seymour  v.  McDonald,      809,      811, 

1136,  1138. 
Seymour  r.  Morgan,  667. 
Shackelford  v.  Smith,  1596. 


ARE    TO    THE    PAGES. 

Shackle  v.  Baker,  1164,  1165. 
Shafer,  In  re,  288. 
Shaffer  v.  Stull,  662,  671. 
Shaffer  v.  Sutton,  205,  206. 
Shalley  v.  Spillman,  344,  351. 
Shannon  v.  Frost,  296. 
Shannon    v.    State    of    Wisconsin, 

1472. 
Shannon  v.  Wright,  1350,  1361. 
Sharon  v.  Terry,  125. 
Sharp  V.  Arbuthnot,   1110. 
Sharp  V.  Ashton,  1558. 
Sharp  V.  Schmidt,    224. 
Sharpe  v.   Loane,  665,  667,  669. 
Sharpe  v.  Tatnall,  350. 
Shaubut  V.  St.  Paul  &  S.  C.  R.  Cc.,. 

720,  792. 
Shaul  V.  Duprey,  176,  179. 
Shaver  v.   Heller  &  M.   Co.,   1025, 

1028,  1078. 
Shaw  V.  Chambers,  382. 
Shaw  V.  Dwight,  242,  351. 
Shaw  V.  Hill,  1271,  1655. 
Shaw  S.  Co.  V.  Mack,  1034. 
Shay  V.  Nolan,  176. 
Shearer  v.  Murphy,  550. 
Sheboygan  v.   Sheboygan   &  F.   R. 

Co.,  778. 
Shed  V.  Hawthorne,  726,  783. 
Sheehan  v.  Taft,  1383. 
Sheeks  v.   Erwin,  809,  848. 
Sheen  v.  Stothart,  1287. 
Sheffield  Water-works  v.  Yeomans. 

19. 
Sheldon  v.  Rockwell,   807. 
Sheldon  v.  Stokes.  356. 
Shelfer   i\    City   of   London    E.    L- 

Co..  748. 
Shellman  v.  Scott,  1474,  1502. 
Shelly  V.   Brannan,  880. 
Shelton   r.   Franklin,   1352. 
Shelton  r.  Piatt,   440,  466. 
Shenandoah      National     Bank     sa.. 

Read,    1591. 


CXll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Shenandoah  Valley  R.  Co.  v.  Su- 
pervisors, 512. 

Shepardson  v.  Gillette,   472. 

Shepardson  v.  Milwaukee  B.  &  R. 
Co.,  603. 

Sheridan  v.  Colvin,  1252,  1326. 

Sheridan  v.  McMullen,  646. 

Sheriff   v.   Coates,   884. 

Sherlock  v.  K.  C.  B.  R.  Co.,  793. 

Sherlock  v.  Louisville,  N.  A.  &  C. 
R.   Co.,  619. 

Sherlock  v.  Village  of  Winnetka, 
515,  1237. 

Sherman  c.  Bellows,  1530. 

Sherman  v.  Clark,  3,  43,  1193,  1232, 
1328. 

Sherman  v.  Wright,   396. 

Shermerhorn  v.  Webber,  726. 

Sherrill  v.  Harrell,  1510. 

Sherry  v.  Perkins,  717,  1410,  1413. 

Sheward  v.  Citizens'  W.  Co.,  1651. 

Shields  v.  Arndt,    765. 

Shields  v.  Mayor  of  Savannah,  556. 

Shields  v.  McClung,  169. 

Shields  v.  Titus,  852. 

Shinkle  v.  City  of  Covington,  1256. 

Shipley  v.  Caples,   846,  848. 

Shipley  v.  Ritter,  669,  690,  691. 

Shipman  v.  Beers,  826,  828. 

Shippen  v.  Paul,  1191. 

Shiras  r.  dinger,  736. 

Shirley  r.  Long,  1571. 

Shirley  v.  Watts,  152,  318,  1397, 
1398. 

Shivery  v.  Streeper,  705,  707. 

Shoeffler  v.  Schwarting,  1499. 

Shoemaker,  In  re,  284. 

Shoemaker  v.  Axtell,   103. 

Shoemaker  v.  Board  of  Commis- 
sioners of  Grant  Co.,  492. 

Shoemaker  v.  Entwisle,  103,  1255, 
1640. 

Shoemaker  v.  National  Mechanics 
IJank,  1200. 


ARE    TO    THE    PAGES. 

Shoemaker  v.  South    Bend    S.    A, 

Co.,  970. 
Shonk   V.    Knight,   415,    1514,   1515, 

1540. 
Shonk  Tin  Printing  Co.  v.  Shonk, 

28. 
Shook  V.  Daly,  991,  1006. 
Shook  V.   Rankin,    998,   1001,    1007, 

1548. 
Shore  v.  The  People,  1469. 
Short  V.    Spragins,   1593. 
Shotwell's  Admr'x  v.   Smith,  1475. 
Shreve  v.   Black,  645,   1548. 
Shreve   v.    Voorhees,    832. 
Shrewsbury  &  B.  R.  Co.  r.  London 

&   N.    W.   R.    Co.,    1494. 
Shrewsbury  &  C.  R.  Co.    r.    Shrews- 
bury    B.  R.   Co.,  20,   1102. 
Shricker    v.    Field,    169,    207,    211, 

213,    1487,    1515. 
Shrimpton  v.   Laight,  1073. 
Shubrick    v.    Guerard,    626. 
Sickels  V.   Tileston,   906,   907. 
Sickles   V.    Borden,    1453. 
Sickles  V.   Gloucester  Manufactur- 
ing Co.,  880,  930. 
Sickles  V.  Manhattan     G.     L.     Co., 

1107. 
Sidener  ?'.  Norristown,      552,      602, 

603,    605. 
Sidener  v.  White,  142. 
Siegel  r.  Supervisors,  447,  498. 
Siegel  V.  Town    of    Liberty,    1238, 

1268,  1313. 
Siegert  v.  Abbott.  1079. 
Siegert  v.  Findlater,      1027,      1081, 

1083. 
Siegfried  v.  Raymond,  479,  505. 
Sieman  v.  Austin,   110,   387. 
Sierra  Nevada  Mining  Co.  r.  Sears, 

1216. 
Silliman  v.  Hudson  R.  B.  Co.,  797. 
Silllman  v.  Troy    Bridge    Co,    799, 
Silliman  v.  Whitner,  142& 


TABLE  OF  CASES  CITED. 


CXIU 


THE    REFERENCES 

Silva  V.  Garcia,    646. 

Silva  V.  Rankin,   693. 

Silver  Spring  B.  &  D.  Co.  v.  Wool- 
worth,  27. 

Silvers  v.  Traverse,   1448. 

Sim   V.    Hurst,    526. 

Simmons  r.  Cloonan,  835. 

Simmons  Hardware  Co.  v.  Waibel, 
1034. 

Simmons  Medicine  Co.  v.  Mans- 
field Drug  Co.,  1031,  lOSO. 

Simms   v.    Phillips,    347. 

Simon   v.   Townsend,   1503. 

Simons  v.  Martin,    210. 

Simons  v.  Morehouse,  851. 

Simper   v.    Foley.    817,    823. 

Simpkins   v.   Ward,    478. 

Simpson  v.  Denison,  1204,  1210, 
1221,   1222. 

Simpson  v.  Hart,  233. 

Simpson  v.  Justice,  705,  707, 

Simpson  v.  Westminster  P.  H. 
Co.,  1204,  1208. 

Simrall    v.    Grant,    1385. 

Sims  V.  City  of  Frankfort,  560. 

Sims  v.  Street  Railroad  Co.,  585, 
1211. 

Sinclair  v.  Commissioners  of  Wi- 
nona   Co.,    1265,    1313. 

Singer  M.  Co.   v.   Loog.  1070. 

Singer  Machine  Manufacturers  r. 
Wilson,  1070,  1071. 

Singer  Manufacturing  Co.  v.  The 
Domestic   Co.,   1081. 

Singer  Manufacturing  Co.  r.  Union 
Co.,  1096. 

Singer  Mfg.  Co.  v.  June  Mfg.  Co., 
1047. 

Singer  Mfg.  Co.  v.  Wright,  1650. 

Sinnett  v.  Moles,  538,  1502,  1507, 
1508,    1656. 

Sinnickson  v.  Johnson,  1510. 

Sipe  V.   Holliday,  1601. 

Sisk  V.  Garey,  264. 


ARE    TO    THE    PAGES. 

Sixth  Avenue  R.  Co.  v.  Gilbert 
Elevated  R.  Co.,  1440. 

Sizer  v.  Anthony,   1594. 

Sizer  v.  Miller,   1540. 

Skillman  v.   Skillman,  1388. 

Skinner's  Company  v.  Irish  So- 
ciety, 341. 

Skip    V.   Harwood,   24,    1432. 

Skipwith  V.  Strother,  230,  231, 
1100. 

Skirving  v.  National  Life  Ins.  Co., 
135. 

Skoll,  In  re,  274,  280. 

Slack  V.  Wood,  133,  134,  136. 

Slater    v.    Merritt,    1437. 

Slaughter  House  Cases,  1647,  1648, 
1657. 

Sleeper   v.   Bullen,   524. 

Sligh  _  V.    Bowers,    1238. 

Slingerland  r.  Norton,  1272. 

Sloan  r.  Coolbaugh,   408. 

Sloan  V.  Moore,   1351. 

Sloane  v.  Clauss,  47. 

Sloman  v.  Walter,  89,  1120, 

Small  V.  Sanders,  1048,  1050. 

Small  V.  Minneapolis  E.-M.  Co., 
1204,    1213,    1224. 

Small  V.  Somerville,  352. 

Smallman  v.  Onions,  656. 

Smith  V.  American   Co.,   70. 

Smith  V.  Appleton,  1235, 1281,  1499. 

Smith  V.  Aykwell,  1111. 

Smith  V.  Bangs,    1194,    1204,    1222. 

Smith  V.  Bank,  468. 

SmiCJ'  '/;.  Blake,  56,  1544. 

Smith  V.  City  of  Oconomowoc, 
667, 

Smith  V.  City  of  Rome,  637. 

Smith  V.  Collyer,  687. 

Smith  V.  Commissioners  of  Leav- 
enworth, 444. 

Smith  V.  Cooke,    644. 

Smith  V.  Cummings,    885. 

Smith  V.  Davis,  38. 


CXIV 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Smith  V.  Deweese,    220,   221. 

Smith  r.  Earl   of   Effingham,  92. 

Smith  v.  Fouche,    210. 

Smith  V.  Fredericlv,    247. 

Smith  V.  Fromont,   1353. 

Smith  V.  Gardner,    662,    667. 

Smith  ('.  Gregg,    1603. 

Smith  V.  Hallvyard,    896,    1429. 

Smith  V.  Harrington,    1487. 

Smith  V.  Hays,    1376. 

Smith  V.  Heuston,  815,  1529. 

Smith  v.  Jameson,  695. 

Smith  V.  Jeyes,    1354,    1361. 

Smith  V.  Johnson,  978. 

Smith  V.  Kemmerrer,  230. 

Smith  V.  Kochersperger,    517,    549, 

1655. 
Smith  i\  Loclvwood,   732. 
Smith  V.  Longe,  510. 
Smith  V.  Loomis,   1514. 
Smith  V.  Lowry,   175. 
Smith  i\  Magourich,    1644. 
Smith  V.  Malcolm,  324. 
Smith  r.  Mason,  281. 
Smith  i:  McDowell,   570,   729. 
Smith  V.  McElwain,    1403. 
Smith  V.  McLain.  1382. 
Smith  V.  McLaren,   1645. 
Smith  V.  Mechanics      Building      & 

Loan  Association,  413. 
Smith  V.  Meriden     Brittania      Co., 

884. 
Smith  V.  Mutual    Life    &    T.    Co., 

1584. 
Smith  V.  New    York    Consolidated 

Stage    Co.,    1430. 
Smith  V.  Pettingill,  694. 
Smith  V.  Poyas,   654. 
Smith  V.  Price,  329. 
Smith  V.  Reading  C.   P.  Ry.,  8. 
Smith  V.  Republic    Life    Insurance 

Co.,   1541. 
Smith  V.  Reynolds,   1343. 
Smith  V.  Rude  Bros.  Mfg.  Co.,  468. 


Smith  r.  Sahler,  1655. 

Smith  V.  Sands,   912. 

Smith  i\  Short,    100. 

Smith  V.  Smith,    19,    151,    666,    669. 

Smith  V.  Thomas,    1564. 

Smith  V.  Tyler,  198. 

Smith  V.  Vulcan  Iron  Works,  1669, 

1670. 
Smith  V.  Walker,  1640. 
Smith  V.  Weldon,  1286. 
Smith  V.  Wells,   1616,  1624. 
Smith  V.  Western    Union    T.    Co., 

1440,  1657. 
Smith  V.  Whitmore,  95,  265. 
Smith  V.  Young,    845,   846,    850. 
Smith  ;;.  Zimmerman,    402. 

Smith's  Appeal,  1157. 
Smith-Barry    v.    Dawson,    1449. 
Smith  &  Fleek's  Appeal.   646. 
Smithhurst  v.  Edmunds,   425. 

Smyth  ('.  Ames,  47,  596. 
Snedaker,  In  re,  285. 

Snediker  v.  Pearson,  264. 
Snell   V.    Buresh,   782. 

Snider   v.   Rinehart,   137. 
Snook  V.  Snetzer,  117,  118,  119. 

Snowden  v.   Noah,   1053. 

Snyder  v.  Cabell,  719,  735. 

Snyder  v.  Foster,  1238. 

Snyder  v.  Hopkins,  627. 

Snyder  v.  Seeman,  1502. 

Snyder  v.  Street  R.   Co.,  782. 

Sobey    v.    Thomas,    1494. 

Societe  Anonyme  v.  Allen,  1644. 

Societe  Anonyme  v.  Western  Dis- 
tilling Co.,  1429,  1446. 

Societe  Anonyme  des  Anciens  Es- 
tablissements  Panhard  et  Levas- 
sor  r.  Panhard  Levassor  Motor 
Co.,  1055. 

Society  v.  Butler,  400,  842,  1487. 

Society  r.  Diers,   1280. 

Society  r.  Holsman,  15. 

Society  v.  Low,  829,  1127. 


TABLE  OF  CASES  CITED. 


cxv 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Society  v.  Morris    Canal    &    Bank- 
ing  Co.,    765. 
Sohier    r.    Merril,   266. 
Solicitor  General  v.  Lord  Mayor  of 

Dublin,    42,    1274. 
Solis  Cigar  Co.  v.  Pozo,  1071,  1074, 

1079. 
Solomon  v.   Fleming,  1238,  1313. 
Soltau  V.   DeHeld,   735,   745. 
Somerset  v.  Cookson,  428. 
Somerville   v.    Mayes,    1600. 
Sorley  v.  Brewer,  1400. 
Soule  V.  City  of  Passaic,  715. 
South   Bend   R.   R.   Co.   v.   Am.   T. 

&   T.    Co.,   1640. 
South   Carolina  &  G.   R.   R.   v.   E. 

S.  T.  Co.,  1653. 
South  Carolina  R.  Co.  v.  Columbia 

&  A.   R.   Co.,   866. 
South  Chicago  Ry.  Co.  v.  Calumet 

Ry.  Co.,  1103,  1116. 
South   Platte    Land  Co.    v.   Buffalo 

Co.,  461,  462,   463,  498,  502,  1266. 
South      Presbyterian      Church      v. 

Hintze,    348. 
South  Side  R.  Co.,  In  re,  1452. 
South    Yorkshire   R.    Co.    r.   Great 

Northern   R.    Co.,   1105,   1214. 
Southard   v.   Morris   C.    &   B.   Co., 

644,  75L 
Southerland      v.      Crawford,      166, 

1617. 
Southerland      v.     Harper,     347. 
Southern     California     R.     Co.     v. 

Rutherford,  1096,   1422. 
Southern    Express    Co.    v.    Mayor, 

S8. 
Southern      Oregon     Co.      v.     Coos 

County,  477. 
Southern  Pacific   Co.   v.   Earl,    895, 

1645. 

Southern    Pacific    Co.  v.  Robinson, 
76. 


Southern   Pac.    R.    Co.    v.    City   of 

Oakland,   8,  663. 
Southern    Pac.    R.    Co.    v.    Col.    F. 

&  I.   Co.,  597. 
Southern    R.    Co.    v.    B.,    S.    &    N. 

O.  R.  Co.,  602,  604. 
Southern  Ry.  Co.   ik  City   of  Ash- 

eville,  484,  499. 
Southern  W.  L.  Co.  v.  Gary,  1025. 
Southern  White  Lead  Co.  v.  Colt, 

1026,    1027. 
Southey     v.     Sherwood,     981,     982, 

983. 
Southmayd     v.     McLaughlin,     675, 

676. 
Southwestern   B.   E.    L.    &   P.   Co. 

V.   Louisiana  E.   L.   Co.,   20,   882. 
Southwestern  R.  Co.  v.  Chapman, 

162. 
Southwestern    R.    Co.    t'.    Screven, 

623. 
Spackman  v.  Lattimore,  1210. 
Spalding    Hotel    Co.     r.    Emerson, 

1126,    1133. 
Spangler's  Appeal,  842. 
Spargur    v.    Heard,    837. 
Sparhawk  v.  Union  P.  R.   Co.,  29, 

31,  1208,  1212. 
Sparkman  v.  Higgins,  922. 
Sparling  v.  Dwenger,  568. 
Speak  V.  Ransom,  1486,  1573. 
Spears  t\  Mathews,  1659. 
Spence  v.  Steadman,  395. 
Spence  v.   London   &   Birmingham 

Railway  Company,  727. 
Spencer  v.  Point  Pleasant  &  0.  R. 

R.    Co.,    614. 
Spencer  t\  Rosenthall,  1385. 
Spencer  v.  School   District,  1282. 
Spencer  v.  Sherwin,   1589,   1606. 
Spencer  v.  Stearns,  1652. 
Spencer  v,  Wheaton,  482. 
Sperry  t\  City  of  Albina,  519. 
Speyrer   r.   Miller,  1488. 


CXVl 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Spicer  r.  Hoop,  .1183. 

Spiegel  V.  Gansberg,  1258. 

Spier  V.   Lambdin,  1166. 

Spiers  v.  Browne,  941. 

Spilman    r.    City   of    Parkersburg, 

1276. 
Spink  V.  Francis,  88. 
S,pofEord   r.    Bangor    &    B.    R.    Co., 

343,  666,  667. 
Spokane  Coop.  M.  Co.  v.  Pearson, 

133,  170,  171,  212. 
Spokane    St.    Ry.    Co.    v.    City    of 

Spokane  Falls,  559. 
Spokes      r.      Banbury      Board      of 

Health,    775,    1469. 
Spottiswood  V.  Clark,    1085. 
Spottswood  V.  Higgenbotham,   172, 

185. 
Sprague  v.  Rhodes,   702,  803. 
Sprigg  V.  Western   Telegraph  Co., 

17. 
Spring  r.  Collector  of  Olney,  1610, 

1637. 
Spring  Valley  Coal  Co.  i\  People, 

475. 
Spring    Valley     Water    Works     r. 

Bartlett,   1251. 
Springer   r.   Walters,   725,   726. 
Springfield  M.  &  F.  I.  Co.  v.  Peck, 

1390. 
Springhead  Spinning  Co.  r.  Riley, 

968. 
Sprinkle  r.  Hutchinson,  1374. 
Sproat  r.   Durland,   4. 
Spurgln  r.  White,  308. 
Stafford  r.  Shortreed,  1177. 
Stahl  V.  Ertel.   1437,  1454,  1467. 
Stahlbut  r.  Bauer,  1326. 
Staight  r.  Burn,  817,  818,  823. 
Stainthorp   r.  Humiston,  913. 
Stallard  r.  Cushing,  850. 
Stamper  r.  Roberts,  451. 
Stanard  r.  Rogers,  ICO,  174. 


Standard    Elevator    Co.    v.    Crane 

Elevator  Co.,  884,  1669,  1670. 
Standard    Fashion    Co.    v.    Siegel- 

Cooper  Co.,  1149,  1151. 
Standard   Gold  Mining  Co.   r.   By- 

ers,  1232. 
Standard    Oil    Co.    v.    Magee,    460. 
Standard    Paint    Co.    r.    Reynolds, 

885. 
Stanford   v.   Hurlstone,   664. 
Stanford  v.   Lyon,   720. 
Stanley   v.   Bonham,   1601. 
Stansfield   v.   Habergham,    651. 
Stanton  v.   Embry,   46,   89.   134. 
Star  Brewery  Co.  r.  Primas,  1116, 

1136,  1137,  1138,  1142,   1143,  1144. 
Starks  v.   Redfield,  434. 
Starr   v.    Chicago,    R.    I.    &    P.    R. 

Co.,    125. 
Starr  v.  Heckart,  191,   287,  288. 
State  r.  Aloe,   1326. 
State  r.  Baker,  7. 
State  V.  Baldwin,  1426,  1444. 
State  f.  Budd,   1567. 
State  r.  Callaway     County     Court, 

1311,  1319. 
State  r.  Capital    City    Dairy     Co., 

29,  32. 
State  V.  Carpenter,   732. 
State  r.  Chase,    1647. 
State  V.  Chicago,    R.    I.    &    P.    R. 

Co.,   126. 
State  r.  Circuit    Court,    483,    1425, 

1426,    1428. 
State  V.  City     of     Eau     Claire,    58, 

730.   805. 
State  r.  City    of    Milwaukee,    1530. 
State  V.  City      of      New      Orleans, 

1654. 
State  r.  Commissioners,   1238. 
State  r.  Commissioners  of  Marion 

Co.,  1287. 
State  r.  Commissioners     of      Wa- 
baunsee Co.,  1303. 


TABLE  OF  CASES  CITED. 


CXVll 


THE    REFERENCES 

State  r.  Crawford.  710. 
State  V.  Cunningham,  57,  58. 
State  v.  Cutler,    1452,    1463. 
State  V.  Dayton    &   S.    E.    R.    Co., 

582,  1530. 
State  V.  Debaillon,   1494. 
State  V.  Dillon,  1647,  1648. 
State  V.  District  Court,  1647. 
State  r.  District   Court    of   Mower 

County,  1426,  1657. 
State  V.  Duffel,  1326. 
State  r.  Duluth   S.    R.  Co.,    1657. 
State  r.  Durkee,  1331. 
State  V.  Eddy,  1466. 
State  r.  Pagan,  718. 
State  r.  Fredlock,  1461. 
State  y,  Gilpin,   1464. 
State  V.  Goodnight,  686,   724. 
State  V.  Hager,  1319. 
State  V.  Hall,  1588. 
State  r.  Hanna.   773. 
State  V.  Harness,  1440. 
State  V.  Harpers     Ferry     B.     Co., 

1425,  1429,  1440. 
State  r.  Hill,  224. 
State  V.  Houston,  1440,  1657. 
State  v.  Jacksonville   P.   &   M.    R. 

Co.,  1552. 
State  r.  Johnson,  1576,  1647. 
State  V.  Judge,  1335. 
State  V.  Judge  Civil  District  Court, 

1653. 
State  V.  Judge  of  Eighth    District 

Court,  1493. 
State  r.  Judge     of    Fifth     District 

Court,  1659. 
State  V.  Judge   of  Fourth  District 

Court,  1654. 
State  V.  Judge  of  Nineteenth  Judi- 
cial District  Court,  1657. 
rtata  r.  Judge  of  Seventh  District 

Court,   1592. 
£tate  r.  Judge    of    Sixth    District 
Court,  23,  1657. 


ARB   TO    THE    PAGES. 

I  State  V.  Judge  of  Superior  District 
Court,  59,  1493,  1643. 
State  i\  Judge  of  Twelfth  District 

Court,  1657. 
State  r.  Judge    of    Twenty-second 

Judicial   District,   1653,    1657. 
State  r.  Kisbert,  1334. 
State  V.  Knight,   1434,    1449,    1450, 

1468. 
State  V.  Loomis,  1545. 
State  r.  Lord,   1343,  1530. 
State  V.  Markuson,       1425,       1427, 

1461. 
State  V.  Maury,  39. 
State  V.  Mayor,  724. 
State  V.  Mayor  of  Kearney,  1326. 
State  V.  McGlynn,   14. 
State  V.  McLaughlin,  545. 
State  V.  Metschan,  1530. 
State  V.  Milligan,  1245,  1435. 
State  r.  Monroe,  1563. 
State  v.  Morau,  57,  58. 
State  V.  Murphy,  1461. 
State  V.  Myers,   1463. 
State  V.  Ohio  Oil  Co.,  733. 
State  V.  O'Leary,  29,  32. 
State  V.  Parish  Judge  of  St.   Ber- 
nard,  23. 
State  r.  Parkville    &    G.    R.    Co., 

535,  1533. 
State  V.  Pennoyer,  1343,  1530. 
State  V.  Pierce,   1425. 
State  V.  Saline    Co.     Court,     1299, 

1319. 
State  r.  Sanderson,  1311. 
State  V.  Schlitz  Brewing  Co.,  1227. 
State  V.  Schweickardt,    29. 
State  V.  Stallcup,  1647. 
State  V.  Superior  Court,  1251,  1331, 

1435,  1436. 
State  V.  Theard,  86,  1435,  14o'6. 
State  v.  Tiedemann,  333. 
Stat8  i\  Voss,    1460. 
State  V.  Withrow,  1326. 


CXVlll 


TABLE   OF  CASES   CITED. 


THE    REFERENCES 

State  r.  Wolfenden,  1329. 

State  r.  Wood,  50,  86. 

State  of  Kansas  r.  Anderson,  1526. 

State    Letter    Co.    f.    Fitzpatrick, 

127. 
State  of  Missouri  ex  rel.  v.  Farris, 

302. 
State  Railroad  Tax  Cases,  440,  443, 

449,  467,  469,  486. 
State  Savings  Bank  v.   Kerchieval, 

436. 
Stationers  r.  Seymour,  953. 
Stearns-Rogers  Mfg.  Co.  ;;.  Brown, 

1644. 
Stebbins  v.  Challiss,  444,  453,  523. 
Stedman  v.  Webb,  1479. 
Steel  r.  Gordon,  1438,  1603,  1630. 
Steele  r.  Boone,  1610. 
Steele   r.    Municipal      Signal      Co., 

1238,  1313. 
Steelsmith  r.  Fisher  Oil  Co.,  1460, 

1571. 
Steen  v.  March,   139. 
Stees  r.  Kranz,  1123,  1127,  1504. 
Stein  V.  Benedict,  179,  251. 
Stein  V.  Bienville  W.  S.  Co.,  856. 
Stein  V.  Frieberg,  145. 
Steinau  v.  C.  G.  L.  &  C.  Co.,  1092, 

1094,   1095,   1097,   1116,    1118. 
Stenglein  r.  Saginaw  Circuit  Judge, 

1331. 
Stephens  i\   Aulls,   1164,   1165. 
Stephens  v.  Minnerly,  1275. 
Stephenton  v.  Gardiner,  69. 
Sterling  r.  Littlefield,  702. 
Sterling's  Appeal,  573. 
Sterling    Remedy  Co.  v.  Spermine 

Medical   Co.,   1066. 
Stetson    r.    Chicago    &    E.    R.    Co., 

616. 
Stettauer  v.  New  York  &  S.  C.  Co., 

1220. 
Steuart  v.   State.  1614. 
Stevens  r.  Beekman,  666,  689,  694. 
Stevens  v.  Denning,  lOlG. 


ARE    TO    THE    PAGE3. 

Stevens  v.  Davison,  1194. 

Stevens  v.  Erie    R.    Co.,    602,    605, 

610. 
Stevens  v.  Gladding,   940,   975. 
Stevens  v.  Keating,  887,  927. 
Stevens  v.  Myers,    1498. 
Stevens  v.  New  York  &   0.  M.  R. 

Co.,  508. 
Stevens  v.  Paterson   &   N.    R.    Co., 

13. 
Stevens  r.  South    Devon     R.     Co., 

1209,  1210. 
Stevens  r.  Wildy,   946. 
Stevens  Point  Boom  Co.  r.  Reilly, 

778. 
Stevenson  v.  Miller,   1602. 
Steward   r.   Winters,   393,   398,   399, 

1118,   1123,   1130. 
Stewart  r.  Board    of    Commission- 
ers,   524. 
Stewart  r.  Brooks,  224. 
Stewart  v.   Chew,   683. 
Stewart  v.  Erie  &  W.  T.  Co.,  1204, 

1208. 
S:.ewart  i\  Jackson,  411. 
Stswart  V.  Johnston,    1502. 
Stewart  r.  Little     Miami     R.     Co., 

1189. 
Stewart  v.  Miller,  1579. 
Stewart  v.  Pace,   391. 
Stewart  r.  Raymond  R.  Co.,  612. 
Stewart  v.  Superior  Court,    1648. 
SLewart  r.  Winters,  656. 
Stewart  r.  Wisconsin     Central     R. 

Co.,   125. 
Stewart  &  Folz's  Appeal,  795. 
Stewart  Wire    Co.    v.    L.    C.   &    N. 

Co.,  12. 
Stiff  v.  Cassell,   1103,  1116. 
Stiles  V.  City  of  Guthrie,  544,  546, 

547. 
Stillman  v.  White  Rock  Manufac- 
turing Co.,   768. 
Stillwell   r.   Oliver,  144. 
Stilt  v.  Hilton,  1499. 


TABLE  OF  CASES  CITED. 


CXIX 


THE    REFERENCES 

Stilwell  V.  Carpenter,  133,   169. 
Stilz  r.   City  of   Indianapolis,   468, 

1265. 
Stimpson  v.  Putnam,  1447. 
Stimpson  r.  Rogers,  922. 
Stines  v.  Dorman,  1136,  1139. 
Stites  V.   Knapp,   216. 
Stitt  V.   Hilton,   1512. 
St.  John's  College  v.  Carter,  1447. 
St.  Joseph  &  D.  C.  R.  Co.  r.  Dry- 
den,   594,   1506. 
St.  Louis  V.  Alexander,  1622. 
St.  Louis  V.  Goode,  331,  458. 
St.    Louis,   A.    &   T.    H.   R.    Co.   r. 

Todd,  150. 
St.  Louis  I.  M.  &  S.  R.  Co.  r.  An- 
thony,  475. 
St  Louis  L.   I.   M.  &  S.  R.   Co.  r. 

Worthen,  455. 
St  Louis  M.  &  M.  Co.  v.  Montana 

M.  Co.,  696. 
St.  Louis  National  Bank  v.  Papin, 

488. 
St.  Louis  R.   Co.  V.  Northwestern 

St.  L.  R.  Co.,  868. 
St.  Louis  &  S.  F.  R.  Co.  v.  Apper- 

son,   441 
St.  Louis  &  S.  F.  R.  Co.  r.  Lowder, 

223. 
St.  Louis  Zinc  Co.  v.  Hesselmeyer, 

1592. 
St.  Mary's  Gas  Co.  v.  Elk  County, 

504. 
Stockdale  v.  Ullery,  1352. 
Stocker  v.  Brockelbank,  1146. 
Stockton  V.   Briggs,  217,  218. 
Stockton  V.  Central     R.     Co.,    599, 

729.  1227. 
Stockton  V.  Ransom,   226. 
Stockton  V.  Williams,  109.  381,  382. 
Stoddart  v.  Vanlaningham,  16, 1549. 
Stokes  V.  Knarr,  148,  221,  447. 
Stokes  r.  Landgraff,  1020,  1061. 
Stokes  V.  The  City  Offices  Co.,  824. 
Stolze  V.  M.  &  L.  W.  R.  Co.,  606. 


ARE    TO    THE    PAGES. 

Stone  V.  Goss,  27,   28. 

Stone  V.  Roscommon    Lumber  Co., 

801. 
Stone  V.  Wetmore,  1330. 
Storer  v.  Great    Western    R.    Co., 

1117. 
Storey  v.  Murphy,  1238,  1244,  1268. 
Storm  V.  Mann,  627. 
Storrs  V.  Payne,  104,  185. 
Story  V.  Jersey  City  &  B.  P.  P.  R. 

Co.,  42. 
Story  V.  Windsor,  639. 
Story's  Ex'rs  r.  Holcombe,  964. 
Stoughton    V.   Woodard,    1044. 
Stout  V.  Curry,  656. 
Stout  V.   La  FoUette,  1374. 
Stoutenburgh  v.  Peck,  1514,  1515. 
Stovall  r.  McCutcheon,   1159,  1162. 
Stowe  V.  Thomas,  971,  973. 
Stowers  v.  Postal  Tel.  Co.,  575. 
St.  Paul  &  S.  C.  R.  Co.  r.  Robin- 
son, 44. 
Strang  v.   Richmond,    P.    &   C.    R. 

Co.,  1097. 
Strasser  v.   Moonelis,   1642. 
Strathmore  r.   Bowes,   648. 
Stratton    r.   Stratton,   1394. 
Straus  r.   Barnett,  748. 
Strauss  r.    Phillips,   1367,   1374. 
Strawberry  C.  Co.  i\  Chipman,  662. 
Street  v.  Rider,   408. 
Street  v.  Rigby,    1121. 
Street  r.  Union  Bank,   1032. 
Street  Railroad  Co.  v.  Wildman,  38. 
Street    Railway    v.    Cumminsville, 

561,   614. 
Streissguth  v.  Kroll,  1109 
Streit  r.   Citizens    Fire    Insurance 

Co.,  1192. 
Stringfield   v.    Hirsch,   1630. 
Stringham   v.   Brown,   408,   1389. 
Strodes  v.  Fatten,  243,  369. 
Strohl  V.  Borough  of  Ephrata,  552. 
Strom   r.   American  Mortgage  Co., 

1653. 


cxx 


TABLE  OF  CASES  CITED. 


THE  REFERENCES 

Strong  V.  Downing,  373. 
Strong  V.  Menzies,    1486. 
Strowbridge  L.  Co.  v.  Crane,  1154. 
Strutt  V.  Bovingdon,  766. 
Struve  V.  Schwedler,  936. 
Stuart  V.  Stewart  &  Co.,  1037,  1040, 

1073. 
Stuart  V.  Supervisors   of   La   Salle 

Co.,  148. 
Stubber  v.  Hornsby,  1323. 
Stubblefield  v.  Patterson,  154, 
Stubenrauch  v.  Neyenesch,  1257. 
Sturgeon  v.  Hooker,  1479. 
Sturgis  V.  Knapp,  1605,  1620,  1621. 
Sturtevant    r.    Milwaukee    R.    Co., 

1482. 
Sturz  V.  De  La  Rue,  890. 
Stuyvesant  r.  Pearsall,  1235,  1236, 

1314. 
Suess  V.  Noble,  86. 
Suffern  v.  Butler,  1499, 
Sugar  Refining  Co.  v.  Mayor,  799, 

1285,  1287. 
Sullings  r.   Goodyear  Dental  Vul- 
canite Co.,  915. 
Sullivan  v.  Graffort,  323. 
Sullivan  v.  Judah,  1425,  1426,  1428, 

1470. 
Sullivan  v.  Moreno,  778. 
Sullivan  r.  Redfield,  883,  922. 
Sullivan  v.  Royer,  742. 
Summers  r.  Farish,  53,  1553. 
Summerville   Co.   v.   The   Augusta 

Co.,  684. 
Sunderland  v.  Martin,  568. 
Supervisors  v.  Campbell,  543. 
Supervisors  i\  Jenks,  444,  449,  450, 

546,  547. 
Supervisors  v.  McFadden,  877. 
Supervisors  v.  Paxton,  1503. 
Supervisors  v.  Webster,  442. 
Supervisors     of     .Jackson    Co.     v. 

Brush,  1299,   1306. 
Supervisors    of   Livingston    Co.    v. 

Welder,  535,  536,  1299. 


ARE    TO    THE    PAGES. 

Supreme  Court  of  I.  0.  O.  F..v.  Su- 
preme Court,  1594. 

Supreme  Lodge  r.  Carey,  180. 

Susquehanna  Bank  v.  Supervisors, 
of  Broome  Co.,  441. 

Sutcliffe  r.  Dohrman,  1349. 

Sutphen  v.  Therkelson,  827. 

Sutro  r.  Wagner,  1361. 

Sutter  V.  Trustees,   292,  309. 

Sutton  V.  Head,  1136. 

Sutton  V.  Lord  Montfort,  822. 

Sutton  V.  Sutton,  367,  368. 

Swain  v.  Burnley,  362,  370,  376„ 
1524. 

Swaine  v.  Great  N.  R.  Co.,  703. 

Swan  V.  B.,  C.  R.  &  N.  R.  Co.,  853. 

Swan  r.  Timmons,  1580,  1596,  1597„ 
1634. 

Swanson  v.  Kirby,  1163,  1170. 

Sweatt  V.  Faville,  1558. 

Sweeney  v.  Williams,  100. 

Sweeny  v.  Torrence,  1417. 

Sweet  v.  Boyd,  445. 

Sweet  V.  Cater,  1015. 

Sweet  V.  Maugham,  952,  987,  988. 

Sweet  r.  Shaw,  952. 

Swepson  r.  Call,  1550. 

Swett  v.  City  of  Troy,  1245,  1247. 

Swift  V.  Coker,  330. 

Swift  i\   Swift,  1392. 

Swift  &  Co.  0.  United  States,  1186. 

Swinburn  v.  Smith,  59. 

Swindall   v.  Bradley,,  322. 

Swinney  v.  Beard,  444,  449,  467, 
471. 

Switzer  v.  McCulloch,  803. 

Sword  V.  Allen,  672. 

Sykes  v.  Manhattan,  910. 

Sylvester  Coal  Co.  v.  City  of  St., 
Louis,  87,   1254. 

Symonds  v.  Hallett,  1390. 


T 


Tabor  r.  Clark,  1631,  1635. 
Tabor  r.  Hoffman,  925. 


TABLE  OF  CASES  CITED. 


CXXl 


THE    REFERENCES 

Taendsticksfabriks  A.  V.  v.  Myers, 

1071,  1072. 
Taggart  v.  Wood,  148. 
Tainter  v.  Lucas,  453,  503,  1508. 
Taintor  v.  Mayor,  560. 
Talbot  V.  Ford,  1092,  1130. 
Talbot  V.  Hope  Scott,  626. 
Talbott  r.  Randall,  1397,  1401. 
Talcott  V.  Brackett,  1182. 
Tallahassee  R.  R.  Co.  c.  Hayward, 

1594. 
Tallant  v.  City  of  Burlington,  526. 
Tallassee    Manufacturing     Co.     v. 

Glenn,  492. 
Tallassee     Manufacturing    Co.     i\ 

Spigener,  468,  470. 
Tallcott  V.  Moore,  1070,  1075. 
Talley  v.  Tyree,  804. 
Tamworth  v.  Ferrers,  649,  650. 
Tannage  Patent  Co.  v.  Adams,  897. 
Tannage  Patent  Co.   v.   Donnalan, 

897. 
Tanner  v.  Irwin,   1653. 
Tapp  r.  Beverley,  147. 
Tapp  r.  Rankin,  171. 
Tappan  r.  Gray,  1325,  1330. 
Tarbox  r.  Hartenstein,  78. 
Tarpey  r.  Shillenberger,  1584,  1588. 
Tarrant  &  Co.   v.  Hoff,  1037,  1041, 

1071,  1081. 
Tartar  v.  Gibbs,  307. 
Tash  V.  Adams,  1238,  1242,  1244. 
Tate  V.  Vance,  692. 
Tatem  v.  Gilpin.  806,  1547,  1643. 
Taunton  v.  Taylor,  711. 
Taylor  i\  Baldwin,  90. 
Taylor  r.  Bay  City  S.  R.  Co.,  615. 
Taylor  r.  Brookman,  810. 
Taylor  v.  Brownfield,  1606. 
Taylor  r.  Campbell,  201. 
Taylor  v.  Carpenter,      1033,      1034. 

1035,  1089. 
Taylor  v.  City  of  Pine  Bluff,  87. 
Taylor  v.  Clark,  684. 
Taylor  v.  Collins,    436. 
Tnylor  r.  Cook.  1646. 


ARE    TO    THE    PAGES. 

Taylor  r.  Davey,  44. 

Taylor  v.  Davis,  1348. 

Taylor  v.  Dickinson,  1498. 

Taylor  v.  Fore,  287. 

Taylor  v.  Hughes,  1215. 

Taylor  v.  Kerrheval,  1325,  1329. 

Taylor  v.  L.  &  N.  R.  Co.,  476,  477.. 

498. 
Taylor  v.  Morgan,  1475. 
Taylor  v.  Nashville    &    C.    R.    Co,. 

190. 
Taylor  v.  P.,  K.  &  Y.  R.   Co.,  564. 
Taylor  v.  Pearce,  662. 
Taylor  v.  Ricards,  151. 
Taylor  v.  Russell,  26. 
Taylor  v.  Snyder,  1487. 
Taylor  v.  Thompson,  467,  468. 
Taylor  V.  Underbill,  355. 
Teaff  V.  Hewitt  1620. 
Teager  v.  Landsley,  119. 
Teasey  v.  Baker,  1506. 
Teed  v.   Marvin,  1113. 
Teegarden  v.  Davis,  530. 
Telegraph  Co.  v.  McLean,  1103. 
Telephone  Mfg.   Co.  r.    S.   T.   Mfg.. 

Co.,  1023. 
Telford  v.  Brinkerhoff,  133,  137. 
Telford   r.    Metropolitan   Board    of 

Works,    1210,    1274. 
Teller  V.  Carteret,  115. 
Ten  Eyck  v.  Sjoburg,  341. 
Tenham  v.  Herbert,  19,  75,  76,  77. 
Terhune  v.  Midland  R.  Co.,  1649. 
Terre  Haute  &  Indianapolis  R.  Co.. 

r.  Peoria  &  Pekin  Union  R.  Co.,. 

126,  1555,  1601. 
Terril's  Adm'rs  r.  Southall's  Ex'r,. 

235,  1368. 
Terrill  v.  Southall,   235,  1368. 
Terry  v.  Hamilton  Primary  School 

1612. 
Terry  v.  Rasell,  426. 
Tevis  V.  Ellis,  327,  339. 
Texarkana  v.  Leach,  570. 
Texas  Land  Co.  t\  Turman,  248v. 


CXXll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Texas-Mexican   R.    Co.    v.   Wright, 

176,   223. 
Texas   &   N.    O.   R.   Co.   v.   White, 

1609. 
Texas  &  P.  R.  Co.    v.  Harrison  Co., 

459. 
Texas  &  P.  R.  Co.  v.  Kuteman,  125. 
Texas  &  P.  R.  Co.  v.  Marshall,  1095. 
Texas  &  Pacific  R.  C.  v.  Rosedale 

Street  R.  Co.,  614. 
Thatcher  r.  Humble,  689. 
Thayer  v  Wales,  896,  1556. 
Thayer  v.  Younge,  1162. 
The    Attorney-General    v.    Pearson, 

292. 
Thebaut  v.  Canova,  705,  755. 
The  Company  of  Stationers  v.  Sey- 
mour, 953. 
Theed  r.  Debenham,  817. 
The  Society  v.  Low,  1486. 
Thiebaud  r.  Tait,  468. 
Third  Avenue  R.  Co.  v.  Mayor  of 

N.  Y..  78. 
Third  National  Bank  v.  Mylin,  47, 

486. 
Thistlethwaite  v.  State,  1428. 
Thomas,  In  re,  290. 
Thomas  v.  Calhoun,  805. 
Thomas  v.  Gain,   482. 
Thomas  v.  Inter-Country  S.  R.  Co., 

561. 
Thomas  v.  Jones,  393,   636. 
Thomas  v.  Kent  Circuit  Judge,  23. 
Thomas  v.  McDonald,  1634. 
Thomas  v.  M.  M.  P.  U.,  1196. 
Thomas  v.  Nantahala  M.  &  T.  Co., 

694. 
Thomas  v.  Oakley,  680,  694. 
Thomas  r.  Stokes,    1644. 
Thomas  v.  Supervisors,  1248,  1249, 
Thomas  v.  Weeks,  884. 
Thomas  v.  Williams,   969. 
Thomas  Iron  Co.  v.  AUentown  Min 

ing  Co.,  698. 
Thompson  v.  McCormick,   1182. 


ARE    TO    THE    PAGES. 

Thompson  v.  Bohannon,   219. 
Thompson  v.  Brown,  1369. 
Thompson   v.     Commissioners      of 

Canal  Fund,  1341. 
Thompson  v.  Donnell      Mfg.      Co., 

895. 
Thompson  v.  Engle,  335. 
Thompson  v.  Laughlin,     157,     198, 

199. 
Thompson  v.  Lynam,  435,  632., 
Thompson  i:  Maloney,  780. 
TTiompson  v.  Manhattan      R.     Co., 

564. 
Thompson  v.  Maxwell,  1545. 
Thompson  v.  McNair,  1595. 
Thompson  v.  Nelson,  1644. 
Thompson  iK  New    York    &    H.    R. 

Co.,  870. 
Thompson  v.  Penn.    R.    Co.,    1428, 

1470. 
Thompson  v.  Society  of  Tammany, 

1194. 
Thompson  v.  Stanhope,  965,  966. 
Thompson  r.  Williams,   629. 
Thompson's  Appeal,  1386. 
Thompson-Houston     Electric     Co., 

r.  Hoosick  Ry.  Co.,  899. 
Thompson-Houston      Electric     Co. 

V.   Nassau  E.   R.   Co.,  1665. 
Thompson-Houston     Electric      Co. 

r.  Ohio  Brass  Co.,  899. 
Thompson-Houston      Electric      Co. 

V.  Union  Ry.  Co.,  908. 
Thorley's  Cattle  Food  Co.   v.  Mas- 

sam,  968,  969. 
Thorn  v.  Sweeney,  661,  666. 
Thorne  v.    Sweeney,   7. 
Thornloe  i\  Skoines,  1553. 
Thornton  v.  Finch,  430. 
Thornton  v.  Grant,  777. 
Thornton  v.  Ramsden,  384. 
Thornton  r.  Roll,  705. 
Thornton  r.  Thornton,  74 
Tliorpo  r.  Bnimfitt,  849. 
Threlkelds  i\  Campbell,  374. 


TABLE   OF  CASES   CITED. 


CXXIU 


THE    REFERENCES 

Thropp  V.  Field,  1457. 

Thruston  v.  Mustin,   645. 

Thum  Co.  V.  Tloczynski,  27,  1095. 

Thurman  i:  Burt,  1110,  1111. 

Thurston  r.  Haskell,  1631. 

Thweatt  r.  Gammell,  1468,  1469. 

Tibbetts  v.  Fore,  1385. 

Tibbits  r.  Miller,  1544. 

Tichenor  v.  Wilson,  751,  752. 

Tfede  v.  Schmeidt,  29,  1474. 

Tifel  V.  Jenkins,  17. 

Tifft,  In  re,   288,   1467. 

Tifft  V.  City  of  Buffalo,  1316. 

Tifft  r.  Iron  Clad  Mfg.  Co.,  276. 

Tift,  In  re.  288,  1467. 

Tift  V.  Southern  R.  Co.,  596. 

Tilghman  v.  Mitchell,  900. 

Tillery  v.  Wrenn,  413. 

Tiiton  V.  Oregon  C.  M.  R.  Co.,  498, 

499. 
Times    Publishing    Co.    v.    Everett, 

1261,  1264. 
Tingue  v.  Village  of  Port  Chester, 

532. 
Tink  V.  Rundle,  91. 
Tinkler  r.  Board  of  Works,  1281. 
Tinsley  v.  Lacy,  973,  982. 
Tipping  V.  Eckersley,   1117,  1119. 
Tipping  r.  St.     Helen's     Smelting 

Co.,  705. 
Tipton  Fire  Co.  v.  Barnheisel,  1204. 
Tisdale  v.  Insurance  Co.,  80. 
Tishimingo   Savings  Institution  v. 

Buchanan,  98. 
Titus  V.  Mabee,  1476,  1484,  1655. 
Tobriner  v.  White,  176. 
Todd  V.  Pratt,  245,  390. 
Todd  V.  Rustad,   1271,  1272. 
Tode  V.  Gross,  1121,  1158. 
Tod-Heatly  v.  Benham,  1123,  1125. 
Toledo  V.  Lafayette,  510. 
Toledo,  A.   A.  &  N.   M.  Ry.   Co.  v. 

Detroit,  L.  &  N.  R.  Co.,  335,  1640. 
Toledo,  A.   A.   &  N.   M.  Ry.   Co.  v. 

Pennsylvania  Co.,  4,  33,  53,  595, 


ARE    TO    THE    PAGES. 

1410,  1419,  1421,  1422,  1423,  1454. 
Tolman   v.    Salomon,   474. 
Tomasini  v.  Taylor,  667. 
Tomboy  G.  M.  Co.  v.  Brown,  1650. 
Tomlinson  v.  Branch,    505. 
Tomlinson  v.  Rubio,  339. 
Tommy   v.   Ellis,   238. 
Tompkins  r.  Drennen,  170. 
Tompkins  r.  Tremlin,   240. 
Tooke  V.   Newman,   412,   414. 
Tootle  V.  Ellis,  225. 
Topeka    City   Ry.    Co.    r.    Roberts, 

441,  464. 
Topeka  W.  S.  Co.  v.  Roberts,  441, 

464. 
Topp  V.  White,   366. 
Toppan  V.   National    Co.,   906,  907, 

914. 
Tornanses  v.  Melsing,  1668. 
Torrent  r.  Common  Council,  1285. 
Torrent  v.  Muskegon     Boom     Co., 

397. 
Torrey  v.  Camden  &  A.  R.  Co.,  579. 
Touzalin    v.    City   of    Omaha,    498, 

499. 
Towle  V.  Towle,   1589. 
Town  of  Anamosa  v.   Wurzbacher, 

198. 
Town  of  Burlington     r.     Schwarz- 

man,    781,    1532. 
Town  of  Cicero       r.      Williamson, 

1266. 
Town  of  Covington       r.       Nelson, 

1287,  1288. 
Town  of  Drummer  r.  Cox,  479. 
Town  of  Durham    r.    R.    &    D.    R. 

Co.,   1504. 
Town  of  Guilford  r.  Cornell,  1585. 
Town  of  Jamestown  r.  Chicago,  B. 

&  N.   R.  Co.,  583. 
Town  of  Lebanon  r.  Ohio  &  M.  R. 

Co.,   478,  480. 
Town  of  Neshkoro    r.    Nest,     781, 

1531. 


CXXIV 


TABLE  or  CASES  CITED. 


THE    REFERENCES 

Town    of   Platteville   v.    Galena   & 

Southern  Wisconsin  R.  Co.,  583. 
Town  of  Springport     v.     Teutonia 

Savings  Bank,  1301. 
Town  of  Sullivan  v.  Phillips,   719, 

784. 
Town  of  Westerly      v.      Westerly 

Waterworks,  1663. 
Town   of   Williamstown   v.   Darge, 

1472. 
Townsend  v.  Epstein,  790. 
Townsend  v.  Jarman,    1356. 
Townsend  i\  McDonald,  769. 
Townsend  r.  Quinan,   236. 
Township    of    Dixon    r.    Board    of 

Commissioners,  1533. 
Township    of   Hutchinson    v.    Filk, 

722,  1531. 
Tracy  v.  LeBlanc,  702. 
Tracy  v.  Torrey,  914. 
Trademan's  Bank  r.  Merritt,  1518. 
Traders    Ins.    Co.   v.    Farwell,    449, 

459. 
Traphagen  r.  Mayor,  1295. 
Travers    r.    Stafford,    1572. 
Travis  r.  Ward,  1270. 
Treadwell   c.   Payne,   319. 
Trego  V.  Hunt,  1169,  1170,  1357. 
Trenor    r.    Jackson,    1129. 
Trent   r.    Cartersville   B.    Co..    876. 
Trenton  Banking  Co.  r.  McKelway, 

108,    383. 
Trester  i:  Pike,  1631,  1635. 
Trevigne  v.  School  Board,  38. 
Tribette  t?.  I.  C.  R.  Co.,  82. 
Tribune   Association   r.    The   Sun, 

665,  675,   676. 
Triebert  v.  Burgess,  1401. 
Trimmer  v.  Penn.  S.  &  N.  E.  R.  Co., 

1454. 
Trimmier  v.  Bomar,  1304. 
Triplett  v.   Turner,   160. 
Troe  r.  Larson,  801. 
Trotter    r.    Paunley,    1280. 
Troupe  r.   Eade,  1647. 


ARE    TO    THE    PAGES. 

Trowbridge   ;;.  True,  717,  812. 

Troy  v.  Norment,  11,  1568. 

Troy  &  B.  R.  Co.  v.  B.,  H.  T.  &  W_ 

R.    Co.,    15,    589,    623. 
Trueblood   v.   Hollingsworth,   143. 
Truehart  v.  Price,  811. 
Truesdale   v.   Peoria   Grape   Sugar 

Co.,   617. 
Truesdell's  Appeal,  542. 
Trulock  i\  Merte,  740. 
Truly  V.  Wanzer,  243,  362,  364,  366, 

370. 
Trust  Co.  V.  Georgia,    1227. 
Trust  Co.  V.  Weaver,   158. 
Trustees  v.  Cowen,    731,    809,    810,. 

1136,    1143,    1531,    1532. 
Trustees  v.  Davenport,    1656. 
Trustees  r.  Gilbert,  1523. 
Trustees  v.  Gray,  814. 
Trustees  v.  Hoessli,  306,  682,  1533, 

1534. 
Trustees  v.  Nicoll,  75. 
Trustees  r.  Proctor,  304. 
Trustees  v.  Stewart,  303. 
Trustees  v.  Walsh,    675. 
Trustees  v.  Youmans,    767,    840. 
Tuckahoe   Canal    Co.    r.   Tuckahoe 

R.   Co.,  858. 
Tucker  r.  Carpenter,  53,  54. 
Tucker  v.  Kenniston,    402. 
Tufts  V.  Little,  631. 
Tugwell  r.  Eagle  Pass  P.  Co.,  874. 
Tulk    v.    Moxhay,    1135. 
T'ullock   r.  Mulvane,   1596. 
Tumlin  -v.  Van  Horn,  43. 
Tuolumne  Water  Co.  v.  Chapman,. 

761,   762. 
Tupper  V.  Powell,  93,  1100. 
Turk  V.  Ross,  1374. 
Turnbull  v.  Ellis,  1646. 
Turner  r.  City  of   Mobile,    19,    81, 

82,  110. 
Turner  v.  Cuthrell,   1507. 
Turner  r.  Evans,  1177. 
Turner  r.  Gatewood,  286,  287,  1455. 


TABLE  OF  CASES  CITED. 


CXXV 


THE    REFERENCES 

Turner  v.  Major,  1359. 
Turner  v.  McCarter,   1381. 
Turner  r.  People's  Ferry  Co.,  776. 
Turner  v.  Robinson,  949,  996. 
Turner  v.  Scott,    1510,   1657. 
Turner  v.  Stephens,   1499. 
'Turner  v.  Wright,  648. 
'Turney  v.  Stewart,  672. 
'Turpin  v.  Jefferson,   1485. 
'Turpjn  V.  Povall,    1100. 
Turpin  v.  Thomas,  169,  175. 
Turton  &  Sons  v.   Turton  &  Sons, 

1036. 
Tutt  V.  Ferguson,  214. 
Tuttle  V.  Church,  751. 
Tuttle  V.  Matthews,  891. 
Twart   v.   Twart,   656. 
Twigg  V.  Hopkins,  232,  237,  267. 
Tyack   v.   Brumley,   855. 
Tygart's  Valley  Bank   r.  Town  of 

Philippi,  498,  512. 
Tyler  v.  Hamilton,  1634. 
Tyler  v.  Hamersley,  63,  262. 
Tyler  v.  Wilkinson,   760,  769. 
Tyler  Mining   Co.    r.   Last   Chance 

M.    Co.,    1607. 
Tyne   v.   Dougherty,   1507. 

u 

Uhl  r.  Dillon,    1397. 

Uhl  v.  Irwin,    1545,    1551. 

Uhl  r.  May,   350,   356. 

Uhlfelder  v.   Levy,   251. 

Uhrig  V.  St.  Louis,  1614,  1636. 

Ulbricht  v.  Eufaula  Water  Co..  14, 

760. 
Ulrich,  In  re,  273. 
Umfreville   r.   Johnson,   736. 
Unangst's  Appeal,  581. 
Underhill    v.    Spencer,    1636. 
Underwood  v.  Barker,  1158. 
Union  Bank  v.  Kerr,   1545. 
Union  Bank  v.  Poultney,  246,  355. 


ARE    TO    THE    PAGES. 

Union  Bethel  Church  r.  Civil  Sher- 
iff, 1589. 

Union  Co.  v.  Binney,  911. 

Union  Iron  Works  v.  Bassick  Min- 
ing Co.,   316. 

Union  Life  Ins.  Co.  v.  Riggs,  125. 

Union  Lumber  Co.  v.  Allen,   1541. 

Union  M.  L.  I.  Co.  v.  University 
of  Chicago,  125. 

Union  M.  &  M.  Co.  v.  Warren,  25. 

Union    Pac.    R.    Co.    v.   Carr,   515. 

Union  Pacific  R.  Co.  v.  Lincoln 
Co.,  443,  1301,  1302. 

Union  Pacific  R.  Co.  v.  McShane, 
550. 

Union  Pacific  R.  Co.  v.  Merrick 
Co.,    1305. 

Union  Pacific  R.  Co.  v.  Ruef,  33, 
1410,    1413,    1414,    1419,    1422. 

Union  &  Planters  Bank  v.  City  of 
Memphis,  505. 

Union  Steam-Boat  Co.  v.  City  of 
Chicago,   1245. 

Union  Strawboard  Co.  v.  Bonfleld, 
1158,  1159. 

Union  Trust  Co.  v.  Weber,  444, 
459,   460,   474. 

United  Brethren  Church  v.  Van 
Dusen,    270. 

United  Indurated  Fibre  Co.  /;. 
Whippany  Mfg.  Co.,  896. 

United  L-ines  T.  Co.  v.  Grant,  445, 
466,   517. 

United  N.  J.  R.  &  C.  Co.  r.  Stand- 
ard Oil   Co.,    598. 

United  States  v.  Agler,  1418,  1422, 
1423,  1426. 

United  States  v.  Brighton  Ranche 
Co.,   685,   686,   724. 

United  States  v.  Cleveland  &  C.  C. 
Co.,   685,   724. 

United  States  r.  Colgate,    890. 

United  States  r.  Collins,  156. 

United  States  r.  Duluth,    18,   767. 


CXXVl 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

United  States  r.  Elliott,    33,    141S, 

1419,  1422. 
United  States  v.  Gear,  697. 
United    States    v.    Haggerty,    1410, 

1412,  1413,  1423. 
United  States  v.  Joint  Traffic  Asso- 
ciation, 1184,  1185. 
United  States   v.  Keokuk,  128. 
United  States  v.  Kniglit,  1186. 
United  States  v.  Louisville  &  P.  C. 

Co.,  59,  1217. 
United  States  v.  McLemore,  156. 
United   States   r.   Mississippi   &  R- 

R.  B.   Co.,  768. 
United  States    v.    Parkhurst-Davis 

Mercantile   Co.,   123. 
United   States  v.   Parrott,   52,   694, 

1547. 
United    States     i:     Trans-Missouri 

Freight  Association,  1185. 
United  States  v.  Weber,  1423. 
United    States     v.     Workingmen's 

Council.    1417,    1418. 
United   States  E.  L.   Co.   v.  Metro- 
politan Club,  9,  1107. 
United    States   F.   L.    &   E.    Co.   r. 

Gallegos,  662. 
United   States  Gramophone  Co.   v. 

Seaman,   1644. 
United  States  H.  Co.  v.  Iron  Mold- 

ers'  Union,  1410,  1640. 
United  States  Mitis  Co.  v.  Detroit 

S.  &  S.  Co.,  1543. 
United  Telephone  Co.  v.  Dale.  1430, 

1463. 
Universities    v.     Richardson,     880, 

978,  986. 
University  v.  Tucker,  653. 
Updegrall  v.  Crans,  1328. 
Upmann  v.  Elkan,  1083. 
Up  River  Ice  Co.  v.  Denier,  1163, 

1167,  1177. 
Uren  v.  Walsh,  652,  670,  1291. 
Usborne  r.  Usborne,  657. 


ARE    TO    THE    PAGES. 


Vacuum  Oil  Co.  r.  Climax  Refining 

Co.,    1020,    1022. 
Vail  V.  Knapp,   117,  118,  119. 
Vail  i\  Mix,    804,    833. 
Valentine  v.  Washington,  424. 
Valle  V.  Zeigler,  482. 
Valley    Iron    Works     Mfg.    Co.    v. 

Goodrick,  1502,  1503. 
Valley  P.  &  P.  Co.  (;.  West,  835. 
Valloton  c.  Seignett,  93. 
Van  Beil  r.   Prescott,  1022. 
Van    Bergen    v.    Van    Bergen,    701, 

702. 
Vance  v.  East  Lancashire  R.   Co., 

1210. 
Van  Cott  i\  Supervisors,  482. 
Vanderbilt,  7n  re.   855,  863,  1471. 
Van  Dewater  v.  Kelsey,  1652. 
Van  Doren  v.  Mayor,  500,  1324. 
Vane  v.   Barnard,   648. 
Van  Horn  v.  Keenan,  1094. 
Van  Horn   i:   Talmage.    312. 
Van  Home   v.   Newark   P.   R.   Co., 

725,  728. 
Van  Houten  v.  First  Church,  307. 
Van  Kuren  v.   Trenton    Company, 

1353. 
Van  Mater  v.  Conover,  414. 
Van  Mater  r.  Holmes,  1523. 
Van  Norfs  Appeal,  448. 
Van   Ranst   o.   New   York   College, 

1195. 
Van  Ratcliff  v.  Call,  404. 
Van  Rensselaer  r.  Emery,   1365. 
Van  Rensselaer  r.  Kidd,  500. 
Vansandan  v.  Rose,  1430,  1431. 
Van  Wert  v.  Webster,  316. 
Vanwinkle  v.  Curtis,  669,  685. 
Van   Wyck    v.   Alliger,   643. 
Vanzant  /'.  Vanzant.  1390. 
Varick   r.  Mayor,  682. 
Varick   r.  New  York,  341. 


TABLE  OF  CASES  CITED. 


CXXVll 


THE    REFERENCES 

Varizandt    v.    Argentine    M.     Co., 

1461. 

Varney    v.    Pope,    844. 

Vass  V.  Magee,  166. 

Vathir  v.  Zane,  203. 

Vaughn  v.  Central  Pacific    R.    Co., 

890,    924. 
Vaughn  v.  Johnson,    218,    1563. 
Vavasseur  r.   Krupp,   893. 
Vegelahn  v.  Gunther,  34,  1410,  1412, 

1413,   1414,  1419. 
Verges  v.  Gonzales,  1589. 
Vermont  &  Canada  R.  Co.  v.  Ver- 
mont Central  R.  Co.,  117,  118. 
Vervalen    v.    Older,    636. 
Vesta    Mills  v.    City   Council,    499, 

504. 
Vestry    of     Islington    v.     Hornsey 

Council,   711. 
Viano  r.   Baccigalupo,   1025. 
Vieley  v.  Thompson,  543. 
Vilas    V.   Milwaukee   &   M.   R.   Co., 

611. 
Village  of  Celina  v.  Eastport  Sav- 
ings Bank.  136,  268. 
Village   of  Dolton   v.   Dolton,    148, 

176. 
Village  of  Dwight  v.   Hayes,   704, 

774. 
Village   of   Hyde   Park  v.   City  of 

Chicago,  1267. 
Village  of  Itasca  v.  Schroeder,  556, 

670. 
Village  of  Pine  City  v.  Munch,  1531. 
Village  of  Princeville  v.  Auten,  813, 

814. 
Village  of  St.  Johns  v.  McFarlan, 

712,  1258. 
Villavas   v.   Walker,   1457. 
Vincent  v.  Chicago  &  A.  R.  Co.,  591. 
Vincent  v.  King,  1121. 
Vipan   V.   Mortlock,   1572. 
Virginia  Mining  Co.  v.  Wilkinson, 

100. 


ARE    TO    THE    PAGES. 

Vliet  V.  Lowmason,  1515,  1516. 
Vliet  V.  Sherwood,  1553. 
Vogler  V.  Montgomery,   350. 
Vogt  V.  Ayer,  480,  497. 
Vollmer's  Appeal,  756. 
Von  Joel  V.  Hornsey,  4,  11. 
Voshell  V.   Hynson,  1499. 
Voss  V.  Union  School  District,  550. 
Vreeland  v.  New  Jersey  Stone  Co., 
1478. 


w 

Wabash  Ry.  Co.  v.  McCabe,  1622. 

Wabash,  St.  L.  &  P.  R.  Co.  v.  John- 
son, 479. 

Wachtel  v.  Wilde,  1397. 

Wade  V.  London,   1483. 

Wade  V.  Percy,    374. 

Wadley  v.   Blount,  88,  125. 

Wadsworth  v.  Goree,  664,  688. 

Waffle  i\   Vanderheyden,   1563. 

Wagner  v.  Mee.ty,    1306,    1313. 

Wagner  v.  Pegues,  217,  244. 

Wagner  v.  Shank,   191,    223. 

Wagoner  v.  Loomis,  451,   488. 

Wahl  V.  M.  E.  Cemetery  Assn.,  757. 

Wahle  V.  Reinbach,  704,  747. 

Waite  V.  Ballon,    411. 

Waite  V.  Chichester  Chair  Co.,  16, 
910. 

Wakeman  v.  New  York,  L.  E.  & 
W.  R.  Co.,  846. 

Walcot  V.  Walker,  981,  985. 

Waldo  V.   Denton,   169. 

Waldron  v.  Letson,   423. 

Waldron  v.  Marsh,    685. 

Walker  v.  Backus  H.  Co.,  920, 
1499,   1644. 

Walker  v.  Brewster,  744. 

Walker  v.  Burks,    419. 

Walker  v.  Cockey,    412. 

Walker  v.  Devereaux,  1229. 


•  CXXVlll 


TABLE  OF  CASES  CITED, 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Walker  v.  Emerson,   14,   671. 

w'alRer  v.  Fox,   663. 

Walker  v.  Gurley,  228. 

Walker  v.  Heller,   186. 

Walker  v.  House,  1363. 

Walker  v.  Hunt,  142,  143,  185,  186, 
346. 

Mad  River  R.  Co, 
Mickletliwait,  71. 
Morgan       Park, 


1190. 


Walker 
Walker 
Walker  v.  Morgan       Park,       1245, 

1246. 
Walker  v.  Pritchard,     1595,     1596, 

1624,  1631,   1635. 
Walker  v.  Seigel,  273. 
Walker  v.  Shepardson,    725,   1532. 
Walker  v.  Stone,    1502. 
Walker  v.  Villavaso,  162,  219. 
Walker  v.  Wainwright,  297,  298. 
Walker  v.  Walker,    395,    1559. 
Walker  v.  Zorn,  391. 
Wall  V.  Cloud,  833. 
Walla  Walla  v.  Walla  Walla  Water 
Co.,   47,   1184,   1297. 

Wallace,  In  re,   273,    274,   289. 
Wallace  v.  Arkansas  C.  R.  Co.,  596. 

Wallace  v.  York,    1634. 

Wallack  v.  Society,  81. 

Wallis  V,  Dilley,  1617, 

Walsh  V.   Smyth,  1570. 

Walter  v.  Ashton,  1076,  1352. 

Walter  v.  Emmont,  1052. 

Walter  v.  Hartwlg,  352. 

Walter  v.  Howe,  974. 

Walter  v.  Lane,   951. 

Walter  v.  Selfe,   735. 

Walter  v.  Steinkopff,   956,    960. 

Walters   v.   Fredericks,   1483. 

Walton  V.  Crowley,    1033. 

Walton  V.  Beveling,     1304,      1435, 
1602. 

Walton  V.  Johnson,  393,  394,  1539. 

Walton  V.  Mills,  762. 

Waltrous  V.  Allen,  1139. 

Walts  r.  Foster,  784. 


Walworth  v.  Board  of  Supervisors, 

1550. 
Wamsley  v.  Stalnaker,  363. 
Wangelin   v.   Goe,   680. 
Warburton  v.  London  &  B.  R.  Co., 

1559,   1560. 
Ward  V.  Beeton,   948. 
Ward  V.  City  of  Little  Rock,  787. 
Ward  V.  Derrick,    176,    179. 
Ward  V.  Detroit,  M.   &  M.   R.    Co., 

614. 
Ward  V.  Society  of  Attornies,  1210. 
Ward  V.  Van  Bokkelen,  1507. 
Ward  V.  Whitfield,  1401. 
Warden  v.  South   Eastern    R.   Co., 

1138. 
Warden  v.  Supervisors,     441,     444, 

447,   448. 
Wardens  v.  Town  of  Washington, 

1253. 
Ware  r.  Bazemore,  1215. 
Ware  i\  Grand     Junction      Water 
Works   Co.,  41.   1209. 

Ware  v.  Horwood,  136. 

Ware  v.  Regent's  Canal  Co.,  1189. 

Warfel  v.   Cochran,  1325. 

Warfield  v.  Owens,  52. 

Warington  v.  Wheatstone,  70. 

Warne  v.  Morris  C.  &  B.  Co.,  842. 

Warne  v.  Routledge,    947. 

Warner  v.  Jacob,  417. 

Warner  i'.  Railroad  Co.,  613. 

Warren  v.  Carey,    371,   377. 

Warren  i\  Monnish,   1548. 

Warren  Co.  Agricultural  Joint 
Stock  Company  v.  Barr,  1238, 
1239,  1313,  1314. 

Warren  R.  Co.  v.  Clarion  Co.,  1546. 

Warrin   r.   Baldwin,    1239. 

Warsop  V.  City  of  Hastings,  1552. 

Warwick  r.   Norvefl,  73,  74. 

Washburn  v.  Gould,  887. 

Washer  v.  Brown,  1499.  * 

Washington  p.  Barnes,  1370. 

Washington  r.  Emery,  11,  71. 


TABLE  OF   CASES  CITED. 


CXXIX 


THE    REFERENCES 

Washington's  Ex'r  v.  Parks,  1617. 
Washington  &  G.  R.  Co.  r.  District 

of   Columbia,   33. 
Washington  &  I.  Ry.  Co.  r.  Coeur 

d'Alene  R.  &  N.  Co.,  1644. 
Washington    University    v.    Green, 

3,  4,  8. 
Water    Commissioners   r.   Hudson, 

724. 
Water  Lot  Company  r.  Bucks,  1144, 

1145. 
Waterbury,  In  re,  1197. 
Waterbury  r.  Bouker,  1608. 
Waterbury   Savings  Bank   r.    Law- 

ler,  448. 
Waterloo   i\   Waterloo   S.    R.    Co., 

1297. 
Waterloo  W.    Co.   v.    Hoxie,   621. 
Waterman  o.  Johnson,  409. 
Waterman  v.  Shipman,  1043,  1071. 
Waters  v.  Lewis,    662. 
Waters  v.  Mattingly,   192. 
Waters  P.  O.  Co.  v.  City  of  Little 

Rock,  528. 
Watkins  v.  Brent,    1372. 
Watkins  o.  Griffith,    517,    530. 
Watkins  v.  Logan,   240,  344. 
Watrous  v.  Allen,   1138. 
Watson  r.  Citizens'  Savings  Bank, 

1428,  1437. 
Watson  V.  Farrell,  665. 
Watson  V.  Hunter,  643,  644. 
Watson  V.  Jones,  300. 
Watson  r.  Palmer,  135. 
Watson  V.  Sutherland,  47,  141,  346. 
Watt's  Appeal,  1207. 
Watts  V.  Sanders,  1594,  1599. 
Wayne  o.  Mayor  of  Savannah,  513. 
Weakley   r.  Page,   749. 
Wearin  v.  Munson,  626. 
Weaver  v.  Mississippi   &  R.    R.   B. 

Co.,   1656. 
Weaver  r.  Poyer,  267,  1580.   1655. 
Weaver  r.  Toney,  1436,  1550. 
Webb  r.  Boyle,  633. 


ARE    TO    THE    PAGES. 

Webb  i:  Cutsinger,  477. 

Webb  c.  Hayner,   402. 

Webb  c.  King,   1557. 

Webb  v.  Laird,    1615. 

Webb  V.  Portland  Mfg.  Co.,  760, 
769,  834. 

Webb  V.  Powers,  961,  978. 

Webb  r.  Ridgely,  1231,  1545. 

Webb  r.  The  Portland  Manufac- 
turing Co.,  760,  769,  834. 

Webber  r.  Gage.   809,   848. 

Webber  r.  Wilcox,   1584,   1585. 

Weber  v.  San  Francisco,  524. 

Weber  r.  Timlin,  1272. 

Webster  v.  Chew,  etc.,  96. 

Webster  v.  Couch,  43. 

Webster  v.  Dillon,   1152. 

Webster  o.  Douglas    County,    1238. 

Webster  r.  Harwinton,    542. 

Webster  v.  Skipwith,    196,    1528. 

Webster  o.  South  Eastern  R.  Co., 
609. 

Wedderburn  v.  Wedderburn,  116, 
1526. 

Weeks  r.  Milwaukee,  514,  516. 

Weems  v.  Weems,  169. 

Weener  v.  Brayton,  1062,  1077. 

Weetjen  v.  St.  Paul  &  P.  R.  Co., 
585. 

Wehmer   ii   Fokenga,   310. 

Weigel    i\   Walsh,   669. 

Weil  V.  Ricord,  711. 

Weinstock  v.  Marks,  1031.  1065. 

Weir    ('.    Day,    1282. 

Weise  y.  Welsh,  656. 

Weiss  ('.  Jackson    County,    1296. 

Weiss  V.  Oregon  I.  &  S.  Co.,  760, 
761,  829. 

Welch  V.  Byrns,  23. 

Welch  V.  Clatsop  County,  441,  468. 

Welch  n.  County  of  Plumas,  865. 

Welch  r.  Knott,   1085. 

Welch  r.  Parran.    1520. 

Welde   V.   Scotten,    16,    43. 

Weldon  r.  Dicks,  939,  984. 


cxxx 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Wellborn  v.  Davles,  783. 
Wellenvoss  v.  Grand  Lodge,  35. 
Weller  o.  Smeaton,  751,  752,  761. 
Wellesley     v.     Mornington,     1446, 

1448,  1449. 
Wellington  &  P.  R.  Co.  ;;.  Cashie  & 

C.  R.  Co.,  580. 
Wellman   r.   Harker,   1356,   1546. 
Wells,  In  re,  284. 
Wells  c.  Central    Vermont   R.    Co., 

443,  486. 
Wells  V.  City  of  New  Orleans,  1249. 
Wells  I'.  Coleman,    1640. 
Wells  V.  Dayton,  441,  457. 
Wells  V.  Gill,   898,    900. 
Wells  v.  Oregon  R.  &  N.  Co.,  1426, 

1467. 
Wells  V.  Wells,   422. 
Wells,    Fargo    &    Co.    v.    Crawford 

County,   455,    468. 
Welsbach  Co.  v.  Cosmopolitan  I.  L. 

Co.,   904. 
Welsh  V.   Morris,   1163. 
Welton  V.  Dickson,  47. 
Welty   r.   Jacobs,   1095,  1097,  1116, 

1117,  1149,  1153. 
Welz  V.  Rhodius,  1166. 
Wentworth  v.  Turner,  636. 
Wentzel  i\  Robinson,  1628. 
Wescott  V.  Mulvane,  1482. 
West  ('.  Ballard,    517,  519. 
West  r.  Belches,    158. 
West  V.  East  Coast  Cedar  Co., 1607. 
West  i:  Flannagan,  112,  395. 
West  V.  Mayor,  75,  1253,  1254. 
West  r.  Page,  645. 
West  r.  Smith,    1475. 
West  r.  Walker,    646,    687. 
West  (;.  Wayne,  192. 
West    Coast    Improvement    Co.    r. 

Winsor,   1645. 
West   .Jersey   R.    Co.    r.   Capo   May 

&  S.  L.  R.  Co.,  1191. 
West   Point    Iron    Co.    r.    Reymert, 

696. 


West  Portland  Park  v.  Kelly,  459. 
West  Publishing  Co.  v.  Lawyers  C. 

P.  Co.,  941,  956,  979,  987. 
Westbrook  M.  Co.  v.  Warren,  762. 
Westcott   V.   Gifford,   645. 
Western  v.  Woods,  218. 
Western  Electric  Co.  v.  Anthracite 

Tel.  Co.,  902. 
Western   Electric   Co.    r.   Keystone 

Tel.  Co..  901. 
Western   Electric  Co.   r.   Williams- 
Abbott   Electric   Co.,    1663,    1665. 
Western   M.  &   M.   Co.    r.   Virginia 

C.  C.  Co.,  691. 
Western    Maryland    R.    Co.   r.    Ow- 

ings,  602,  604. 
Western  Maryland  R.  Co.  r.  Patter- 
son, 102,  621. 
Western  N.  C.  R.  Co.  r.  Georgia  & 

N.  C.  R.  Co.,  589. 
Western  P.  R.  Co.'s  Appeal,  586. 
Western  R.   Co.   r.  De  Graff,  1338. 
Western  R.  Co.  v.  Nolan,  441.  444, 

449,  451. 
Western  Ry.   r.  Alabama  G.  T.  R. 

Co.,   579. 
Western  Star  Lodge  r.   Schminke, 

1338,  1339. 
Western  Union  T.  Co.  r.  American 

Union  T.   Co.,  120i. 
Western  Union  T.   Co.   r.  Judkins, 

621,  661. 
Western  Union  T.  Co.  r.  National 

T.  Co.,  1201. 
Western  Union  T.  Co.  r.  Pacific  & 

A.   T.   Co.,   49. 
Western   Union   T.    Co.    r.    Rogers, 

1126. 
Western  Union  T.  Co.  i\  St.  .Joseph 

&  W.  R.  Co.,  1226. 
Western  Union  T.  Co.  r.  Union  Pa- 
cific R.  Co.,  1149. 
Western  Wooden  Ware  Association 

r.  Starkey.  1159.. 


TAliLE   OF  CASES  CITED. 


CXXXl 


THE    REp-ERENCES 

Westervelt  r.  National   Paper  Co., 

27,   28,  928,   1095. 
"Westinghouse     r.     Carpenter,    924, 

926. 
Westinghouse  A.   B.    Co.   r.   Chris- 

tensen  E.  Co.,  1448,  1468. 
Westinghouse    Co.    d.    Christensen 

Co.,  1663. 
Weston  V.  Arnold,  817,  821. 
Weston  V.   Woodcock,   701. 
Wetherell   v.  Town  of  Newington, 

1290. 
Wetmore  v.   Scovell,  966. 
Wetmore  v.  Story,  561. 
Wetzstein  v.  B.  &  M.  Co.,  7,  1641. 
Weyse  v.   Crawford,   490. 
Whalen  v.  Dalashmutt,  667. 
Wharf  Case,   24. 
Wharton  v.  May,  114. 
Wharton  ;;.  Wharton,  1390. 
Wheaton    v.   Peters,    934,   936,   937, 

955,  963. 
Wheeler  ;;.  Bedford,  813. 
Wheeler  v.  Johnston,  1025,  1060. 
Wheeler  v.  Rice,  1271. 
Wheeler  v.  Steele,  806. 
Wheeling  Bridge  Case,  797. 
Whippany  Mfg.  Co.  o.  United  I.  F. 

Co.,  902. 
Whipple,  In  re.  273,  282. 
Whipple   V.   Hutchinson,   52,    1464, 

1471,  1553. 
Whipple  V.  Village  of  Fair  Haven, 

715. 
Whitaker  v.  Hudson,  737. 
Whitchurch  v.  Hide,  855. 
Whitcomb  o.   Girard   Coal   Co.,  20, 

882. 
White,  In  re,  1390,  1425. 
White  V.  Berry,    1325.    1329,    1330. 
White  V.  Brooke,  1615. 
White  V.  Clay's  Ex'rs,  1595. 
White  V.  Cohen,  735. 
White  V.  Commissioners,    1237. 
White  V.  Espey,  350. 


ARE    TO    THE    PAGES. 

White  /;.  Fitzhugh,   1570. 

White  V.  Flannigan,    685. 

White  V.  Forbes,  702,  704,  801,  803. 

White  /;.  Givens,   402. 

White  V.  Heath,  921. 

White  r.  Inebriates     Home,     1642. 

White  V.  Jameson,  735,  758. 

White  0.  Mechanics'     Building 

Fund  Association,  419. 
White  0.  Nashville    &    N.    R.    Co., 

606. 
White  r.  Nunan,   1653. 
White  c.  Raymond,  460. 
White  r.  Schloerb,    283. 
White  /-.  Steuder,   490. 
White  r.  Walbridge,  921,  925. 
White  ij.  Warner,  1094. 
White  V.  Washington's    Ex'r,    215, 

230,  1100. 
White's     Creek     Turnpike     Co.     v. 

Davidson  Co.,  858. 
White  Dental  Mfg.  Co.  v.  Johnson, 

895. 
White  Sulphur  Springs  Co.  r.  Rob- 
inson, 495. 
Whitecar  v.  Michenor,  4,  5,  305. 
Whitehead    v.    Farmers'    Loan    & 

Trust  Co.,  470. 
Whitehead  v.  Kitson,  970. 
Whitehill  r.  Fauber,  351. 
Whitehurst  r.  Green,  1556. 
Whitelaw,  l7i  re,  127. 
Whitelegg  v.  Whitelegg,  626. 
Whiteman  v.  Fayette  Fuel  Gas  Co., 

1107. 
Whitfield  r.  Clark,   422. 
Whitfield  v.  Rogers,  725,  801. 
Whiting  v.   Sheboygan  &  Fond  du 

Lac  R.   Co.,  1309. 
Whitley    v.    Dunham    Lumber   Co., 

1502,  1503. 
Whitman  p.  Robinson,  1361. 
Whitman  r.  Wallis,  344. 
I  Whitmore,  Ex  parte,  1647,  1648. 
I  Whitney  /•.  Mayor,  1250. 


CXXXll 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Whitney  v.  Saloy,  414. 
Whitney  o.  Wilder,  124. 
Whittaker    v.    City    of    Janesville, 

444,  452,  473. 
Whittaker  v.  Hill,  1504. 
Whittaker    v.    Howe,    1157,    1158, 

1174,  1355. 
Whittingham  v.  Wooler,  1008. 
Whitwood   Chemical   Co.    v.   Hard- 
man,  1152. 
Whyte  V.  O'Brien,  236. 
Wick    China    Co.    v.    Brown,    1410, 

1413. 
Wickham  v.  Davis,  1349. 
Wickliffe  v.  Owings,  350. 
Wicks  c.  Hunt,  718. 
Wiedner  v.  Thompson,  421. 
Wier's  Appeal,  741. 
Wierich  v.  De  Zoya,  134.  189,  190. 
Wiggin  V.  New  York,  500. 
Wiggins  V.  A.,  T.  &  S.  F.  R.   Co., 

512. 
Wiggins   V,  Armstrong,    152,     317, 

318.  1397. 
Wight  V.  Thomas,  449. 
»         Wilber  v.  Wooley,  1260,  1425. 
Wilbur,  In  re,  278. 
Wilcocks  V.  Carter,  69. 
Wilcox  V.  Ryals,  1110. 
Wilcox  V.  Walker,  427. 
Wilcox    S.     P.    Co.    V.     Schimmel, 

1428,  1437. 
Wilcoxon  M.  Co.  v.  Atkinson,  1644. 
Wilder  i).  De  Cow,  780. 
Wilder  v.  Lee,  173. 
Wilder  i7.  Strickland,  707. 
Wilds  ».  Layton,  634. 
Wilds  D.  St.  Louis,  A.  &  T.  H.  R. 

Co.,  585. 
Wildy  V.  Bonny's  Lessee,  391. 
Wiley  V.  Board  of  Commissioners, 

1245. 
Wiley    r.   Flournoy,    4r,l.    462,   498. 

.''.02. 
Wilhelm    r.   Woodcock,   344.  357. 


ARE    TO    THE    PAGES. 

I  Wilhelmson  v.  Bentley,  llOO. 
Wilhoit  V.  Castell,  1114. 
Wilkie  V.  City  of  Chicago,  80. 
Wilkie  V.  Rochester  &  S.  L.  R.  Co., 

1232,   1491. 
Wilkin  V.  City  of  St.  Paul.  559. 
Wilkins  v.  Aiken,  932,  960, 
Wilkins  v.  Hogue,  362,  365,  370. 
Wilkinson  v.   City  of  Peru,  540. 
Wilkinson  v.  Dobbie,  9. 
Wilkinson  v.  First  N.  Ins.  Co.,  98. 
Wilkinson  v.  Rewey,  217. 
Wilkinson  v.  Rogers,  1119,  1128. 
Willamette  Iron  Works  v.  O.  R.  & 

N.  Co.,  574. 
Willard  v.  Comstock,  1313. 
Willeford  v.  State,  1325,  1327. 
Willes  V.  Levett,  416. 
Willet  V.  Woodhams,  1545. 
Williams  v.  Ayrault,  117. 
Williams  v.  Bingley,  1354. 
Williams  v.  Boynton,  25. 
Williams  v.  Brietling  M.  Mfg.  Co., 

884. 
Williams  v.  Brown,  81. 
Williams  v.  Chicago  Exhibition 

Co.,  433,  435,  1484,  1551,  1572. 
Williams  v.  Concord  Church,  44. 
Williams  v.  County  Court,  546. 
Williams  v.  Davies.  238. 
Williams  r.  Davis,  1512,  1564. 
Williams  v.  Dutton,  441,  480. 
Williams  v.  Green,  394. 
Williams  t\  Hitzie,  148. 
Williams  r.  .Jersey,  718. 
Williams  v.  Lampkin,  1468. 
Williams  r.  Lee,  212. 
Williams  r.  Lewis,  1349. 
Williams  r.  Mayor.  444,  520,  521. 
Williams  r.  McNamara.  6.^)0. 
Williams  r.  Mitchell,  1066. 
Williams  r.  New    York    C.    R.    Co., 

613. 
Williams  r.  Osborne.  736,  1067. 
Williams  v.  Peinny.  441,  1533. 


TABLE  OF  CASES   CITED. 


CXXXlll 


THE    REFERENCES 

"Williams  v.  Pile,  43,  176,  204. 
Williams  v.  Pouns,  1114,  1657. 
Williams  v.  Prince  of  Wales,  26. 
Williams  v.  Sadler,  63. 
Williams  v.  Smith,  725,    731,    1532. 
Williams  v.  Smythe,    942.  943,  987. 
Williams  v.  Spence,  1032,  1075. 
Williams  v.  Stevens,  Adm'r,    1501. 
Williams  v.  Stewart,  94,  324. 
Williams  v.  Williams,  1157,  1161. 
Williams  v.  Wilson,  1357. 
Williamson  v.  Carnan,  571,  1448. 
Williamson  v.  Raney,  377. 
Williamson  v.  Russell,  245,  338. 
Williamson  v.  Wilson,  1363. 
Williamson's  Adm'r  r.  Appleberry, 

155. 
Williamson's  Adm'rs  v.  Hall,  1587. 
Williamsport  W.   Co.  v.   Lycoming 

G.  &  W.  Co.,  856. 
Williamston  &  T.  R.  Co.  r.  Battle, 

612. 
Wilmarth    v.    Woodcock,    676,    677, 

679. 
Wilmington    S.    M.    Co.     r.     Allen, 

1546. 
Wilmington    Water    Power    Co.    v. 

Evans,  807. 
Wilsey  v.  Maynard,  169,  173. 
Wilson  V.  Baker,  24. 
Wilson  V.  Baltimore  &   P.  R.   Co., 

617. 
WHson  V.  Bastable,  173. 
Wilson  V.  Board     of     Commission- 
ers, 540. 
Wilson  ;;.  Boise  City,  1649. 
Wilson  V.  Butler,  141,  346. 
Wilson  V.  Childs,  281. 
Wilson  V.  City   of    Mineral    Point, 

670. 
Wilson  V.  Cohen.  819. 
Wilson  V.  Consolidated  S.  Co.,  884, 

896. 
Wilson  V.  Craige,  1470. 
Wilson  i\  Davis,  204. 


ARE    TO    THE    PAGES. 

Wilson  r.  Haecker,    1610,    1637. 
Wilson  V.  Hendricks,   1480. 
Wilson  V.  Hill,  26. 
Wilson  V.  Hughell,  681. 
Wilson  V.  Hyatt,   144.   344,  345. 
Wilson  V.  Longendyke,  468. 
Wilson  V.  Mace,  1480,  1511, 
Wilson  V.  McEvoy,   1636. 
Wilson  V.  Miller,  179. 
Wilson  V.  Robertson,  258. 
Wilson  V.  Rockwell,  666. 
Wilson  V.  Sherman,  916,  923. 
Wilson  V.  Shipman,  135,  148. 
Wilson  V.  Sparkman,    221. 
Wilson  V.  Town  of  Philippi,  441. 
Wilson  V.  Weber,  1483,  1636. 
Wilson  V.  Wetherherd,  67. 
Wilson  V.  Wilson,  1389. 
Wimberg  v.   Schwegeman,    372. 
Wimberly,   Ex   parte,     1326,     1327, 

1435. 
Wimpy  V.  Phinizy,  1450. 
Winans  v.  Eaton,  883. 

Winch's  Appeal,  1387. 

Winchell  v.  City  of  Waukesha,  774. 

Winchester  v.  Grosvenor,  213,  232, 
233.  234. 

Winchester  v.  Knight,  639. 

Windisch  v.  Gussett,  216. 

Windman   v.    City     of    Vincennes, 
522,  1266. 

Windwart  v.  Allen,  169,  174. 

Winebrenner  /;.  Colder.  29?,  309. 

Winfield  v.  Bacon.  92. 

Wing  ??.  Dodge,  1610. 

Wing  V.  Pairhaven,  804. 

Wingate  v.  Astoria,  524. 

Wingate  i'.  Haywood,  134. 

Wingfield  v.  McLure,  176,  179, 1619, 

Winkler  r.  Winkler,  43,  44,  567. 

Winn  r.  Albert,   23. 

Winn  V.  Henderson,  164. 


CXXXIV 


TABLE  OF  CASES  CITED. 


THE    REFERENCES 

Winnipesaukee  Association  v.  Gor- 
don, 1136,  1138. 

Winnipiseogee  Lake  Co.  v.  Wors- 
ter,  802. 

Winship  v.  Pitts,  629. 

Winslow  V.  Jenness,  81,  110. 

Winslow  V.  Nayson,  568,  685,  1292, 
1439. 

Winston  v.  Tennessee  &  P.  R.  Co., 
1303,  1313,  1314. 

Winter  v.  City  Council.  43. 

Winter  v.  Coulthard,  221. 

Winters  v.  Means,  224. 

Wirt  V.  Hicks,  885. 

Wisconsin  C.  R.  Co.  v.  Smith,  1429. 

Wisconsin  Central  R.  Co.  v.  Ash- 
land Co.,  457. 

Wisconsin  Central  R.  Co.  v.  Lin- 
coln Co.,  445,  450,  481. 

Wisconsin  M.  &  F.  L  Co.  r.  Bur- 
ner, 1630. 

Wisconsin  River  Improvement  Co. 
V.  Lyons,  804. 

Wise  V.  Grand  Avenue  R.  Co..  880. 

Wisecarver  v.  Wisecarver,  1630. 

Wiseman  v.  Lucksinger,  1295. 

Wiswell  r.  First  Congregational 
Church.  56,  1188. 

Withers  r.  Denmead,  1484. 

Witherspoon  v.  Nickels,  482,  483. 

Witmer's  Appeal,  684,  1396. 

Witter  r.  Lyon,  1456,  1457. 

Witthaus  r.  Braun,  1084. 

Wittich  V.  O'Neal,  1629,  1636. 

Woerishoffer  7'.  North  River  C.  Co., 
1198. 

Wolbert  r.  Harris,  1350. 

Wolbert  r.  Philadelphia,  847. 

Wolf  Lumber  Co.  v.  Brown,  100. 

Wolf  River  L.  Co.  v.  Pelican  B. 
Co..   43. 

Wolfe  V.  Burke,  81,  1079,  1082. 

Wolfe  r.  Goulard.  1061. 

Wollensak  r.   Sargent,  919. 

Wolverhampton  &  W.  R.  Co.  v. 
London  &  N.  W.  R.  Co.,  1098. 


ARE    TO    THE    PAGES. 

Womack  r.  Powers,  111. 

Wombsell  r.  Bellasyse,  649. 

Wong  Wai  d.  Williamson,  1258. 

Wood  ;;.  Bangs,  1248,  1249,  1319. 

Wood  V.  Beadell,  1545,  1546. 

Wood  V.  Braxton,   689. 

Wood  V.  Brooklyn,  1252. 

Wood  V.  Draper,   441,  546. 

Wood  V.  Dwight,  1519,  1657,  1658, 

Wood  v.  Macon  &  B.  R.  Co.,  593. 

Wood  V.  McGrath,  702. 

Wood  t'.  Millspaugh,  1656. 

Wood  V.  Rowcliffe,   429,  1534. 

Wood  V.  Stanberry,  227. 

Wood  i\  Sutcliffe,  718,  763. 

Wood  V.  Winings,  325. 

Wooden  v.  Wooden,  43,  46. 

Woodfin  V.  Beach,  1499. 

Woodhull  V.  Neafie,  1475. 

Woodley  r.  Boddington,  1445. 

Woodman  v.  Attorney-General,  463. 

Woodman  r.  Ely,  451. 

Woodman  v.  Kilbourn  Manufactur- 
ing Co.,  805. 

Woodmanse  &  H.  Mfg.  Co.  v.  Wil- 
liams, 909. 

Woodruff  r.  Fisher,  19,  1562. 

Woodruff  r.  Lockerley.   830. 

Woodruff  r.  Ritter,  1506. 

Woodruff  r.  Wallace,  4. 

Woods  r.  Gary,  1330. 

Woods  r.  Kirkland,  688. 

Woods  r.  Monroe,  75,  76,  108,  389. 

Woodson  P.  Barrett,  230,  231,  1100. 

Woodson  r.  Johns,  1617. 

Woodward     r.    Earl     of     Lincoln, 
1425,  1446. 
I  Woodward  r.  Gyles,  1121,    1122. 

Woodward  r.  King,  1432. 

Woodward  r.  Lazar,  1051. 

Woodward  r.  Schatzell,  1356. 

Woodward  r.  Woodward.  47. 

Woodworth  v.  Edwards,     895,    916, 
923. 

Woodworth  v.  Hall,  895,  915,  92L 


TABLE  OF  CASES  CITED. 


CXXXV 


THE    REFERENCES 

Woodworth  v.  Rogers,  11,  914,  922, 

929,  1568. 
Woodworth  r.  Van  Buskerk,  94. 
Woodworth  ;;.  Weed,  916. 
Woodworth  V.  Wilson,  922. 
Wooifolk  V.  Woolfolk,  1578,  1654. 
Woolsey  v.  Dodge,  860. 
Woolsey  v.  Judd,  934,  966. 
Woolsey  v.  N.  Y,  El.  R.  Co.,  564. 
Wooten  V.  Smith,  1478,  1569. 
Worcester  v.  Truman,  1460,  1465. 
Wordehoff  v.  Evers,  226. 
Worden  v.  California    Fig    Syrup 

Co.,  1079. 
Workingmen's  Amalgamated  Coun- 
cil V.  United  States,  1645. 
World's   Columbian    Exposition    v. 

United  States,  35,  1118. 
Worrell     v.      First     Presbyterian 

Church,  306. 
Worth  Mfg.  Co.  V.  Bingham,  1668. 
Worthen  r.  Badgett,  468,  471. 
Worthington  v.  Lee,  129. 
Worthington  i\  Waring,  29,  1416. 
Worthy, y.  Tate,  342. 
Wortman  v.  Skinner,  1368. 
Wotherspoou  r.  Currie,  1023. 
Wray  v.  Chandler,  202. 
Wren     v.     Cosmopolitan   Gas    Co., 

967. 
Wright  V.  Atkyns,  646. 
Wright  V.  Bishop,  1301,  1302. 
Wright  V.  Eaton,  134. 
Wright  V.  Fleming,  70,  101. 
Wright  V.  Grist,  628. 
Wright  V.  MacFarlane,  1663. 
Wright  V.  Moore,  762. 
Wright  V.  Southwestern     R.      Co., 

496. 
Wright's  Heirs  v.  Christy's  Heirs, 

319. 
Wrisley  Co.  v.  Iowa  Soap  Co.,  1023, 

1028,  1030,  1070,  1074,   1079. 
Wrixon  r.  Condran,  630. 
Wroe  V.  Clayton,  1573. 
Wullenwaber  v.  Dunigan,  1307. 


ARE    TO    THE    PAGES. 

Wyatt  i\  Barnard,  973. 
Wyckoff  V,  Cochran,  1564. 
Wyckoff  ;;.  Victor  S.  M.  Co.,  1095. 
Wykes  v.  Ringleberg,  812. 
Wynn  v.  Wilson,  213. 
Wynne  v.  Newborough,   1526. 
Wynstanley  r.  Lee,  825. 


Xenia    Real  Estate    Co. 

1107. 
Ximenes  r.  Franco,  22. 


Macy, 


Yager  v.  Merkle,  427. 

Yale  V.  Baum,  1597. 

Yale  V.  Moore,  1477. 

Yancy  v.  Fenwick,   175. 

Yates  V.  City  of  Milwaukee,  505. 

Yates  V.  Village  of  Batavia,  103. 

Yeager  v.  Manning,  809,  846,  847, 
850,  85L 

Yick  Wo  V.  Crowley,  124. 

Yocum  V.  Bank,  443,  472. 

Yocum  V.  Moore,  1657. 

Yonge  /•.  McCormick,  360,  361,  362, 
370,  373. 

Yonge  V.  Shepperd,  151. 

York  V.  Kile,  157. 

Young  V.  Campbell,  18,  1305. 

Young  V.  Commissioners  of  High- 
ways, 715. 

Young  i\  Davis,  167. 

Young  r.  Frier,  152,  1350,  1397. 

Young  r.  Grundy,  1652,  1658. 

Young  r.  Lippman,  889,.  892. 

Young  V.  Macrae,  1021. 

Young  V.  Rollins,  1439. 

Young  V.  Rondout  &  K.  G.  L.  Co., 
1642. 

Young  'V.  Sigler,  257. 

Young  V.  Town  of  Henderson.  512. 

Youngblood  r.  Schamp.  51,  1540, 
1545. 

Youngblood  r.  Sexton,  482. 


CXXXVl 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Youngs  c.  Ransom,  304. 
Yovatt  v.  Winyard,  27,  1067. 
Yuengling    v.    Johnson,     879, 
1550. 


913, 


Zabriskie  v. 
784. 


z 

Jersey    & 


B.   R.  Co., 


Zabriskie  v.  Vreeland,  1516. 
Zanliizer  v.  Hefner,  142,  143. 
Zehnder  .  v.     Barber   Asphalt   Co., 

472,  527,  531. 
Zeigler  i\  Beasley,  78. 
Zinn  V.  Dawson,  237. 
Zoll  r.  Campbell,  1475. 
Zorger  v.  Township  of  Rapids,  539. 


THE   LAW   OF   INJUNCTIONS. 


CHAPTER  I. 

OF   THE   DEFINITION    AND    NATURE   OF   THE   REMEDY. 

J  1.     Definition. 

2.  Mandatory    injunctions;    mandamus   distinguished. 

3.  Interlocutory   and   perpetual   injunctions;    temporary   restraining 

orders. 

4.  Object  of  interlocutory  injunction. 

5.  Interlocutory  injunction  not  decisive  upon  the  merits. 
5a.  Interlocutory  injunction  should  preserve  the  status  quo. 

6.  Common  and  special  injunctions. 

7.  Bill   should   show   some   primary   equity;    plaintiff   must   not   be 

guilty  of  laches. 

8.  Relief  not  usually  granted  when  legal  right  in  doubt. 

9.  Substantial  injury  must  be  shown;  exception;  relief  not  granted 

to   encourage   litigation,   nor   where   it   would   operate   inequit- 
ably. 

10.  Utmost  care  necessary;  effect  of  acquiescence. 
10a.  Mere  acquiescence  or  delay  as  defense. 

11.  Right  to  preliminary  injunction  discretionary;    plaintiff  may  be 

questioned  as  to  motives;    no  concealment  tolerated. 

12.  Prevention  of  multiplicity  of  suits. 

13.  Relative    convenience   and    inconvenience    balanced. 

14.  Possession  rarely   interfered  with  by  injunction. 

15.  Discretion  not  controlled   by   mandamus:  courts   of  co-ordinate 

jurisdiction. 

16.  Not  granted  against  covenant,  or  offer  to  perform. 

17.  When  injunction  operative;   official  notice  not  necessary. 

18.  Threatened  injury  sufficient;    difficulty  in  obeying  injunction  no 

defense;    insolvency   not  alone   sufficient. 

19.  Disclosure  of  secrets  enjoined. 

20.  Criminal   acts  not  enjoined. 

20a.  When  relief  granted  though  acts  are  criminal. 
206.  No  relief  against  injury  to  one's  feelings;   nor  for  protection  of 
"right  of  privacy,"  or  of  political  rights. 

21.  Fraud  as  ground  for  relief. 

1  1 


2  INJUNCTIONS.  [chap.  I. 

§22.  Irreparable  injury  must  be  clearly  sbown. 

23.  Injunction  not  corrective  of  past  injuries. 

24.  Relief  in  cases  of  trust. 

25.  Jurisdiction  cautiously  exercised  against  trustees. 

26.  Right  of  petition  rarely  enjoined. 

27.  Foreign   sovereign   entitled   to   protection. 

28.  Injunction  refused  where  legal  remedy  adequate. 

29.  Statutory  remedy  a  bar;   when  objection  of  legal  remedy  to  be 

taken. 

30.  Remedy  at  law  defined. 

31.  How  injunction  granted. 

32.  When   new  suit   unnecessary. 

33.  Not  granted  against  persons  beyond  jurisdiction;   when  granted 

against    persons    within    the    jurisdiction    though    the    res    is 
beyond. 

34.  Positive  averments  of  fact  necessary. 

35.  Allegations  on  information  and  belief  insufficient. 

36.  When  verification  dispensed  with. 

37.  Precision  required  in  writ;  form  not  essential;  no  objection  that 

case  is  without  precedent. 

38.  Injunction  may  be  allowed  though  not  prayed. 

39.  When  injunction  revived  or  reinstated. 

40.  New  injunction  not  allowed  on  same  equities. 

41.  Right  to  relief  on  amended  bill. 

42.  When  jurisdiction  exercised  by  courts  of  last  resort. 

43.  Restrictions  upon  jurisdiction  of  the  courts;  prohibition;  powers 

of  United  States  district  judge. 

44.  Supreme  Court  of  Judicature  Act  in  England. 

§1.  Definition.  A  writ  of  injunction  may  be  defined  aa 
a  judicial  process,  operating  i7i  personam,  and  requiring  the 
person  to  whom  it  is  directed  to  do  or  refrain  from  doing 
a    particular    thing.^      In    its    broadest    sense    the    process   is 

1  McDonogh  v.  Calloway,  7  Rob.  p.    307.      Story    defines    it    as    "a 

(La.),    442;    Childress   v.    Perkins,  judicial  process  whereby  a  party  is 

Cooke   (Tenn.),  87.  Jeremy  defines  required  to  do  a  particular  thing, 

an  injunction  to  be  "a  writ  framed  or  to  refrain  from  doing  a  particu- 

according  to  the  circumstances  of  lar    thing,    according    to    the    exi- 

the  case,  commanding  an  act  which  gency  of  the  writ."    2  Story's  Eq., 

this  court  regards  essential  to  jus-  §  861.     Again,  it  has  been  said  to 

tice,   or    restraining   an  act  which  be  "a  prohibitory  writ,  granted  by 

It  esteems  contrary  to  equity  and  a  court  of  equity  (in  the  nature  of 

good    conscience."      Jeremy's    Eq.,  an   interdictitm    in   the  civil   law). 


CHAP.  I.]  GENERAL    NATURE    OF    WRIT.  3 

restorative  as  well  as  preventive,  and  it  may  be  used  both 
In  the  enforcement  of  rights  and  in  the  prevention  of 
wrongs.^  In  general,  however,  it  is  used  to  prevent  future 
injury  rather  than  to  afford  redress  for  wrongs  already 
committed,  and  it  is  therefore  to  be  regarded  more  as  a 
preventive  than  as  a  remedial  process.^  If  the  injury  be 
already  committed,  the  writ  can  have  no  operation  to  correct 
it,  and  equity  will  not  interfere  for  purposes  of  punishment, 
or  to  compel  persons  to  do  right,  but  only  to  prevent  them 
from  doing  wrong.*  Nor  will  a  court  of  equity  lend  its  aid 
by  injunction  for  the  enforcement  of  right  or  the  prevention 
of  wrong  in  the  abstract,  and  unconnected  with  any  injury 
or  damage  to  the  person  seeking  the  relief.^ 

§  2.  Mandatory  injunctions ;  mandamus  distinguished.  In- 
junctions are  known  as  mandatory  or  preventive,  according 
as  they  command  defendant  to  do  or  to  refrain  from  doing 
a  particular  thing.  While  the  jurisdiction  of  equity  by  way 
of  ■  mandatory  injunction  is  rarely  exercised,  and  while  its 
existence    has    even    been    questioned,    it    is   nevertheless   too 

and  which   may  be  obtained  in  a  3  Attorney-General    v.    New    Jer- 

variety    of    cases    to    restrain    the  sey  R.  R.  &  T.   Co.,  2  Green  Ch., 

adverse    party    in    the    suit    from  136;      Washington     University     v. 

committing   any  acts   of   violation  Green,  1  Md.  Ch.,  97;    Sherman  v. 

of  the  plaintiff's  rights,  as  to  stay  Clark,  4   Nev.,  138;    Blakemore  v. 

proceedings  at  law,  to  restrain  the  Glamorganshire,  1  Myl.  &  K.,  154. 

negotiation     of    notes    and    other  The   remedy   for   injuries    already 

securities,    to    restrain    from    com-  committed,       though       sometimes 

mitting  waste  or  nuisance,  or  from  given  as  an  incident  to  an  injunc- 

infringing  a  patent  or  copyright."  tion,  is  only  allowed  where  a  suffi- 

Burr.   Law   Diet.     So   it  has   been  cient  showing  for  the  injunction  is 

defined    as    "a    prohibitory    writ,  made    out     and     the     injury     has 

specially  prayed  for  by  a  bill,  in  resulted    from    the    act    enjoined, 

which    the    plaintiff's    title    is    set  Sherman  v.  Clark,  4  Nev.,  138. 
forth,   restraining   a   person    from 


committing  or  doing  an  act  (other 
than  criminal  acts)  which  appears 
to  be  against  equity  and  con- 
science."    Bouv.  Law  Diet. 

2  McDonogh  v.  Calloway,  7  Rob.        ^  Goodrich  v.  Moore,  2  Minn.,  61. 
(La.),  442. 


4  Attorney-General  v.  New  Jer- 
sey R.  R.  &  T.  Co.,  2  Green  Ch., 
136;  Bosley  v.  Susquehanna  Canal 
3  Bland,  63. 


INJUNCTIONS. 


[chap.  I. 


firmly  established  to  admit  of  doubt.*'  Mandatory  injunc- 
tions are  seldom  allowed  before  a  final  hearing/  although  they 
may  be  granted  on  interlocutory  applications.*  And  while 
a  court  of  equity  is  always  reluctant  to  grant  a  mandatory 
injunction  upon  an  interlocutory  application  and  before  final 
hearing,  it  may  yet  do  so  in  an  extreme  case  when  the  right  is 
clearly   established   and  the   invasion   of  the   right  results  in 


6  Garretson  v.  Cole,  1  Har.  &  J., 
370;  Krehl  v.  Burrell,  7  Ch.  D., 
551;  Robinson  v.  Byron,  1  Bro.  C. 
C,  588;  Hervey  v.  Smith,  1  Kay  & 
J.,  392;  Martyr  v.  Lawrence,  2  De 
Gex,  J.  &  S.,  261;  Home  &  Colo- 
nial Stores  V.  Colls  (1902),  1  Ch., 
302;  Corning  v.  Troy  Factory,  40 
N.  Y.,  191,  affirming  S.  C,  34  Barb., 
485,  39  Barb.,  311;  Foot  v.  Bron- 
son,  4  Lans.,  47;  Whitecar  v. 
Michenor,  37  N.  J.  Eq.,  6;  Hunt  v. 
Sain,  181  111.,  372,  54  N.  E.,  970; 
Brauns  v.  Glesige,  130  Ind.,  167, 
29  N.  E.,  1061;  Sproat  v.  Durland, 
2  Okla.,  24,  35  Pac,  682,  886; 
Woodruff  V.  Wallace,  3  Okla.,  355, 
41  Pac,  357;  Calhoun  v.  McCor- 
nack,  7  Okla.,  347,  54  Pac,  493; 
Glover  v.  Swartz,  8  Okla.,  642,  58 
Pac,  943;  McDonald  v.  Brady,  9 
Okla.,  660,  60  Pac,  509;  Battalion 
Westerly  Rifles  v.  Swan,  22  R.  I., 
333,  47  Atl.,  1090,  84  Am.  St.  Rep.. 
849;  Condon  v.  Maloney,  108  Tenn., 
82,  65  S.  W.,  871.  And  see  obser- 
vations of  Lord  .Justice  Turner  in 
Durrell  v.  Pritchard,  L.  R.  1  Ch., 
244.  In  Battalion  Westerly  Rifles 
V.  Swan,  supra,  a  mandatory  in- 
junction was  granted  to  compel 
the  defendant  to  surrender  to 
plaintiff  chattels  of  a  peculiar  and 
(-special  value  not  ascertainable  in 
money. 

7  Gale    V.    Abbot,    8    .Jur.    N.    S.. 


987;  Bailey  v.  Schnitzius,  45  N.  J. 
Eq..  178,  16  Atl.,  680;  Hagen  v. 
Beth,  118  Cal.,  330;  50  Pac,  425. 
And  see  Washington  Unfversity  v. 
Green,  1  Md.  Ch.,  97;  Rogers  L.  & 
M.  Works  V.  Erie  R.  Co.,  5  C.  E. 
Green,  379;  Audenried  v.  Philadel- 
phia &  R.  R.  Co..  68  Pa.  St.,  370; 
Herbert  v.  Pennsylvania  R.  Co., 
43  N.  J.  Eq.,  21.  10  Atl..  872;  Dela- 
ware, L.  &  W.  R.  Co.  V.  Central  S. 
T.  &  T.  Co.,  43  N.  J.  Eq.,  77,  10 
Atl.,  602;  Black  v.  Good  Intent 
Tow-boat  Co.,  31  La.  An.,  497. 

« Robinson  v.  Byron,  1  Bro.  C. 
C,  588;  Hervey  v.  Smith,  1  Kay 
&  J.,  392;  Von  Joel  v.  Hornsey 
(1895),  2  Ch.,  774,  65  L.  J.  N.  S. 
Ch.,  102;  New  Iberia  Rice  Milling 
Co.  V.  Romero,  105  La.,  439,  29  So., 
876;  Central  Trust  Co.  v.  Moran, 
56  Minn.,  188,  57  N.  W.,  471,  29 
L.  R.  A.,  212;  Reeves  v.  Oliver, 
3  Okla.,  62,  41  Pac,  353;  Hen- 
derson r.  Ogden  C.  R.  Co.,  7  Utah, 
199,  26  Pac,  1119;  Toledo,  A.  A. 
&  N.  M.  Ry.  Co.  ?■.  Pennsylvania 
Co.,  54  Fed.,  730;  Same  r.  Same, 
lb.,  746;  Chattanooga  Terminal 
Ry.  V.  Felton,  69  Fed.,  273.  In 
Toledo,  A.  A.  &  N.  M.  Ry.  Co. 
r.  Pennsylvania  Co.,  supra,  at  page 
741,  .Judge  Taft  uses  the  follow- 
ing language:  "The  office  of  a 
preliminary  injunction  is  to  pre- 
serve   the    status  quo  until,  upon 


CHAr.  I.J  GEXEKAL    NATUKE    OE    WRIT.  5 

serious  injury."  And  where,  upon  an  interlocutory  applica- 
tion, it  is  clear  that  the  plaintiff  will  be  entitled  to  a  final 
mandatory  injunction,  an  interlocutory  mandatory  injunction 
may  be  allowed.'"  And  when  there  is  a  wilful  and  unlawful 
invasion  of  plaintiff's  right,  against  his  protest  and  remon- 
strance, the  injury  being  a  continuing  one,  a  mandatory 
injunction  may  be  granted  in  the  first  instance.^ ^  It  is  to 
be  observed,  however,  that  courts  of  equity  rarely  interfere 
to  command  the  doing  of  a  positive  act,  but  the  same  result 
is  obtained  by  framing  the  injunction  in  an  indirect  form 
and  prohibiting  the  defendant  from  doing  the  reverse  of 
what  he  is  desired  to  do.'-  Even  then  the  jurisdiction  is 
exercised  with  extreme  caution,  and  is  confined  to  cases 
where  the  courts  of  law  are  unable  to  afford  adequate  re- 
dress, or  where  the  injury  can  not  be  compensated  in 
damages.'^     And    in   determining   whether  to   grant   relief   by 

final     hearing,      the     court     may  Co.,  42  N.  J.  Eq.,  141,  7  Atl.,  851; 

grant    full    relief.      Generally    this  Pokegama  Lumber  Co.  v.  Klamath 

car  be  accomplished  by  an  injunc-  Lumber  Co.,  86  Fed.,  538. 

tion    prohibitory    in    form,    but    it  12  Lane  v.  Newdigate,  10  Ves.,  192; 

sometimes  happens  that  the  status  Cooke  v.   Chilcott,   3   Ch.    D.,   694; 

quo  is  a  condition  not  of  rest,  but  Mexborough    v.    Bower,    7     Beav., 

cf    action,    and    the    condition    of  127;    Central   Trust  Co.   v.   Moran, 

rest    is    exactly    what    will    inflict  56  Minn.,  188,  57  N.  W.,  471,  29  L. 

the   Irreparable   injury  upon  com-  R.  A.  212;   Henderson  v.  Ogden  C. 

plainaut,   which    he   appeals   to    a  R.  Co.,  7  Utah,  199,  26  Pac,  1119; 

court    of    equity    to    protect    him  Sedalia  Brewing  Co.  v.  Sedalia  W. 

from.      In   such    a   case    courts    of  W.  Co.,  34  Mo.  App.,  49.     See  also 

equity   issue   mandatory   writs   be-  Cole  Co.  v.  Virginia  Co.,  1  Sawy., 

fore  the  case  is  heard  on  its  mer-  470;   S.  C,  lb.,  685;  Reeves  r.  Oli- 

its."     See,  contra,   Catholicon  Hot  ver,  3  Okla.,  62,  41  Pac,  353.     But 

Springs  Co.  v.  Ferguson,  7  S.  Dak.,  see,    contra,    Akrill    v.    Selden,    1 

503,  64  N.  W.,  539.  Barb.,  316;    Jackson  v.   Normanby 

9  Whitecar    v.    Michenor,    37    N.  Brick  Co.,    (1899)   1  Ch.,  438. 

J-  Eq.,  6.  1:'.  Isenberg  v.   East   India  H.   E. 

10  Central  Trust  Co.  V.  Moran,  56  Co.,  33  L.  J.  Ch.,  392;  Deere  v. 
Minn.,  188,  57  N.  W.  471.  29  L.  R.  Guest,  1  Myl.  &  Cr.,  516;  Gardner 
A.    212.  V.   Stroever,   81   Cal.,  148,   22  Pac, 

11  Broome  v.  New  York  &  N.  J.  483,  6  L.  R.  A.,  90. 


6  INJUNCTIONS.  [chap.  I. 

way  of  mandatory  injunction  courts  of  equity  will  take  into 
consideration  the  relative  convenience  and  inconvenience 
which  would  result  to  the  parties  from  granting  or  withhold- 
ing the  relief,  and  will  be  governed  accordingly."  Although 
in  states  where  the  distinction  between  law  and  equity  has 
been  abolished,  a  mandatory  injunction  and  a  writ  of  manda- 
mus can  not  be  distinguished,  yet  in  those  jurisdictions  where 
the  long  established  distinction  still  prevails,  prohibitory 
injunction  and  mandamus  are  not  correlative  writs,  the  one 
restraining  action  where  the  other  compels  it  and  both 
applicable  to  the  same  subject  matter.  Injunctions  are 
granted  only  by  courts  of  equity  and  only  in  cases  of  equi- 
table cognizance  according  to  the  established  principles  of 
equity  jurisdiction,  while  writs  of  mandamus  emanate  only 
from  courts  of  law  in  cases  which  are  of  a  purely  legal 
nature.  ^^ 

§  3.  Interlocutory  and  perpetual  injunctions ;  temporary 
restraining  orders.  With  reference  to  their  duration,  injunc- 
tions are  known  as  interlocutory  and  perpetual.  Interlocu- 
tory or  preliminary  injunctions  are  such  as  are  granted  at 
any  time  before  final  hearing,  generally  upon  the  filing  of  the 
bill,  and  continue  until  the  coming  in  of  the  answer,  or  until 
a  hearing  upon  the  merits,  or  the  further  order  of  the  court. 
Perpetual  injunctions  are  granted  only  at  a  final  hearing 
upon  the  merits,  and  usually  form  a  part  of  the  final  decree. 
Indeed,  a  perpetual  injunction  is  in  effect  a  decree  of  the 
court  whereby  defendant  is  perpetually  inhibited  from  the 
assertion  of  an  assumed  right,  or  perpetually  restrained  from 
the  commission  of  an  act  which  would  be  contrary  to  equity 

14  Isenberg  v.  East  India  H.  E.  with  a  covenant  to  repair  the  de- 
Co.,   33   L.   .7.   Ch.,   392;    Flippin  v.  mised    premises.      Jarvis    v.    Hen- 
Knaffle,   2  Tenn.  Ch.,   238.     And  a  wood,  10  C.  E.  Green,  460. 
mandatory     injunction     has     been  i"'  Fletcher  v.  Tuttle,  151  111.,  41, 
refused,  the  purpose  of  which  was  37  N.  E.,  683,  25  L.  R.  A.,  143. 
to    compel    a    landlord    to    comply 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT,  7 

and    good    conscience.^ ^     While,    therefore,    an    interlocutory 
injunction,   being  merely  provisional  in  its  nature,  does  not 
conclude   a   right,   a   perpetual   injunction,   being   a  final   de- 
cree upon   a   full  hearing,   is   conclusive  upon   all   parties  in   i 
interest.      A    temporary    restraining    order    is    distinguished  ! 
from    an    interlocutory    injunction    in    that    it    is    ordinarily   , 
granted  merely  pending  the  hearing  of  a  motion  for  a  tern-   ; 
porary  injunction  and  its  life  ceases  with  the  disposition  of  • 
that  motion  and  without  further  order  of  the  court,  while,  as 
we  have  seen,  an  interlocutory  injunction  is  usually  granted 
until  the  coming  in  of  the  answer  or  until  the  final  hearing 
of  the  cause  and  stands  as  a  binding  restraint  until  rescinded  | 
by  the  further  action  of  the  court. ^^  „-<r-^ 

§  4.  Object  of  interlocutory  injunction.  The  sole  object 
of  an  interlocutory  injunction  is  to  preserve  the  subject  in 
controversy  in  its  then  condition,  and,  without  determining 
any  question  of  right,  merely  to  prevent  the  further  perpe- 
tration of  wrong,  or  the  doing  of  any  act  whereby  the  right 
in  controversy  may  be  materially  injured  or  endangered. 
It  can  not  be  used  for  the  purpose  of  taking  property  out 
of  the  possession  of  one  party  and  putting  it  into  the  pos- 
session of  another,  nor  does  it  go  to  the  extent  of  ordering 
defendant  to  undo  what  he  has  already  done,  since  it  might 
thereby  be  productive  of  as  much  injury  to  defendant  as 
that   of  which  the   party   aggrieved  complains.^^     The  juris- 

16  See   Gilb.  Forum  Roman.,  ch.        i^  Miles  v.  Sheep  Rock  M.  &  M. 

11.     But  an  injunction  will  not  be  Co.,    15    Utah,    436,    49    Pac,    536; 

perpetuated  against  a  party,  with-  State    v.    Baker,    62    Neb.,    840,    88 

out  having  him   before   the  court.  N.  W.,  124.     And  see  Wetzstein  v. 

Chapman    v.    Harrison,    4    Rand.,  B.  &  M.  etc.  Co.,  25  Mont.,  135,  63 

336.     And  it  is  error  for  an  infe-  Pac,    1043;    Maloney    v.    King,    25 

rior    court    to    award    a    perpetual  Mont.,  256,  64  Pac,  688;  Riggins  v. 

injunction    upon    the    same    facts  Thompson,  96  Tex.,  154,  71  S.  W., 

upon  which  the  court  of  last  resort  14. 

of  the  state  has  already  reversed        isMurdock's  Case,  2  Bland,  461; 

an  interlocutary  injunction  in  the  Bosley   v.    Susquehanna    Canal,     3 

cause.      Thorne     v.     Sweeney,     13  Bland,  63;  Farmers  R.  Co.  v.  Reno 

Nev.,  415.  0.  C.  &  P.  R.  Co.,  53  Pa.  St.,  224; 


8  INJUNCTIONS.  [chap.  I, 

diction,  therefore,  being  exercised  to  prevent  the  further 
continuance  of  injurious  acts,  rather  than  to  undo  what  has 
already  been  done,  on  an  interlocutory  application  for  an 
injunction  courts  of  equity  will  only  act  prospectively,  and 
will  interpose  only  such  restraint  as  may  suffice  to  stop  the 
mischief  complained  of  and  preserve  matters  in  statu  quo.^^ 
And  where  the  granting  of  an  interlocutory  injunction  in- 
volves the  decision  of  a  novel  question  of  law  of  grave  im- 
portance and  serious  difficulty,  the  injunction  should  be  de- 
nied.''' And  the  court  should  not,  upon  an  interlocutory  ap- 
plication, enter  a  final  decree  granting  a  perpetual  injunc- 
tion.21 

§  5.  Interlocutory  injunction  not  decisive  upon  the  merits. 
It  is  to  be  constantly  borne  in  mind  that  in  granting  tem- 
porary relief  by  interlocutory  injunction,  courts  of  equity  in 
no  manner  anticipate  the  ultimate  determination  of  the 
questions  of  right  involved.  They  merely  recognize  that  a 
sufficient  case  has  been  made  out  to  warrant  the  preservation 
of  the  property  or  rights  in  issue  in  statu  quo  until  a  hearing 
upon    the    merits,    without    expressing,    and    indeed    without 

Washington  University  v.  Green,  1  iug  with  this  application,  the  prin- 

Md.    Ch.,   97;    Audenried   v.    Phila-  ciple  which,  as  I  humbly  conceive, 

delphia  &  R.  R.  Co.,  68  Pa.  St.,  370;  ought,    generally    speaking,    to    be 

Fredericks   v.   Huber,  180   Pa.   St.,  (he  guide  of  the  court,  and  to  limit 

.'>72,  37  Atl.,  90;   Dickson  v.  Dows,  its   discretion   in   granting   injunc- 

11   N.    Dak.,   404,   92   N.   W.,    797;  tions,  at  least  where  no  very  spe- 

Minneapolis  &  S.  L.  R.  Co.  v.  C,  cial   circumstances   occur,   is.   that 

M.  &  St.  P.  R.  R.  Co.,  116  Iowa,  681,  only  snch  a  restraint  shall  be  im- 

88  N.  W.,  1082;    Southern  Pac.  R.  posed    3S   may   suffice   to   stop   the 

Co.    V.    City    of   Oakland,    58    Fed.,  misciilef  complained  of  where  it  is 

50;   Calvert  v.  State,  34  Neb.,  616,  to  .slay  a   further  injury,  to  keep 

52  N.  W.,  687.  things  as  they  are  for  the  present." 

K'Blakemore  v.  Glamorganshire,  ^'»  Fritz  v.  Erie  City  P.  Ry.,  155 

etc.,  1  Myl.  &  K..  154.     The  princi-  Pa.  St.,  472,  26  Atl.,  653;   Smith  v. 

pie  upon  which  the  jurisdiction  is  Reading  C.  P.  Ry.,  156  Pa.  St.,  5, 

exercised   is  clearly  stated   in   this  26  Atl.,  779. 

case   by  Brougham,  chancellor,  as  ->  Gross  v.  Wieand,  151  Pa.  St., 

follows:      "The    leading    principle,  630,  25  Atl..  50. 
then,  on  which   I   proceed  in  deal- 


CHAP.  I.J  GENERAL    NATURE    OF    AVRIT.  9 

having  the  means  of  formmg  a  final  opinion  as  to  such 
rights.  And  in  order  to  sustain  an  injunction  for  the  protec- 
tion of  property  pendente  lite  it  is  not  necessary  to  decide  in 
favor  of  plaintiff  upon  the  merits,  nor  is  it  necessary  that 
he  should  present  such  a  case  as  will  certainly  entitle  him 
to  a  decree  upon  the  final  hearing,  since  he  may  be  entitled 
to  an  interlocutory  injunction,  although  his  right  to  the 
relief  prayed  may  ultimately  fail.--  Nor  is  the  decision  of 
the  court  in  granting  or  refusing  a  preliminary  injunction 
conclusive  upon  either  the  court  or  parties  on  the  subsequent 
disposition  of  the  cause  by  final  decree.-^  The  court  will  not, 
however,  upon  an  application  for  an  interlocutory  injunction, 
shut  its  eyes  to  the  question  of  the  probability  of  plaintiff* 
ultimately  establishing  his  demand,  nor  will  it  by  injunction 
disturb  defendant  in  the  exercise  of  a  legal  right  without  a 
probability  that  plaintiff  may  finally  maintain  his  right  as 
against  that  of  the  defendant.^*  And  where  the  question  in- 
volved is  merely  of  a  pecuniary  nature,  plaintiff'  will  not  be 
allowed  an  interlocutory  injunction  unless  he  can  satisfy  the 
court  that  there  is  a  probability  that  his  bill  will  not  be 
dismissed  upon  the  hearing.^^ 

§  5  a.  Interlocutory  injunction  should  preserve  the  status 
quo.  Since  the  object  of  a  preliminary  injunction  is  to  pre- 
serve the  status  quo,  the  court  will  not  grant  such  an  order 
where  its  effect  would  be  to  change  the  status.  Thus,  where 
the  plaintiff  seeks  to  enjoin  the  defendant  from  interfering 

22  Great  Western   R.   Co.    v.   Bir-  Asheville,  109  N.  C,  688,  14  S.  E.. 

mingham  R.  Co.,  2  Ph.,  597;   Flip-  316. 

pin    V.   Knaffle,    2   Tenn.   Cli.,    238;  -'.t  Andrae  v.  Redfield,  12  Blatch.. 

Helm    V.    Gilroy,    20    Ore.,    517,    26  407. 

Pac,  851;   United  States  E.  L.  Co.  24  Clayton  r.  Attorney-General,  1 

V.  Metropolitan  Club,  6  App.  D.  C,  Coop.  t.  Cottenham,  97;   Wilkinson 

536;  Buskirk  v.  King,  18  C.  C.  A.,  v.  Dobbie,  12  Blatch.,  298. 

418,  72  Fed.,  22;  Jensen  v.  Norton,  2-,  Attorney-General   v.   Mayor,   5 

12  C.  C.  A..  608,  64  Fed.,  662.    And  De  G.,  M.  &  G.,  52,  affirming  S.  C . 

see  Asheville  St.  Ry.  Co.  v.  City  of  Kay,  268. 


10  INJUNCTIONS.  [chap.  I. 

with  acts  about  to  be  done  by  the  plaintiff  against  the  objec- 
tion of  the  defendant,  a  preliminary  injunction  restraining 
such  interference  is  erroneous  since  its  effect  is  to  destroy 
the  existing  condition  of  the  subject-matter  of  the  suit  by 
permitting  the  doing  of  affirmative  acts  by  the  plaintiff  in 
advance  of  the  final  determination  of  his  right  to  do  them.^^ 
And  in  such  case  the  court  may  compel  the  plaintiff  who, 
after  having  tied  defendant's  hands,  has  thus  changed  the 
status  of  affairs,  to  restore  them  to  the  same  condition  in 
which  they  were  before  the  injunction  was  granted.-'^  And 
by  the  status  quo  which  will  be  preserved  by  preliminary 
injunction  is  meant  the  last  actual,  peaceable,  noncontested 
condition  which  preceded  the  pending  controversy,  and 
equity  will  not  permit  a  wrong-doer  to  shelter  himself  behind 
a  suddenly  and  secretly  changed  status,  although  he  suc- 
ceeded in  making  the  change  before  the  hand  of  the  chan- 
cellor has  actually  reached  him.^^  And  where,  before  the 
granting  of  the  injunction,  the  defendant  has  thus  changed 
the  condition  of  things,  the  court  may  not  only  restrain 
further  action  by  him,  but  may  also,  by  preliminary  manda- 
tory injunction,  compel  him  to  restore  the  subject-matter  of 
the  suit  to  its  former  condition.  And  in  so  doing  the  court 
acts  without  any  regard  to  the  ultimate  merits  of  the  con- 
troversy.^^ 

§  6.  Common  and  special  injunctions.  Interlocutory 
injunctions  are  also  distinguished  as  common  and  special, 
although  in  modern  times  the  distinction  is  of  little  practical 
importance.  The  eoinmon  injunction  is  granted  in  aid  of  or 
secondary  to  another  equity,  as  in  the  case  of  an  injunction  to 
a  judgment  at  law,  and  is  frequent!}^  issued  as  of  course  upon 

20  Chester  Traction  Co.  v.  Phila-  S.  E.  783,  the  court  entertained  a 

delphia  W.  &  B.  R.  Co.,  174  Pa.  St.,  cross-bill     restraining    further   ac- 

284.   34   Atl.,   619.  tion  by  complainant. 

27  Lake  Shore  &  M.  S.  Ry.  Co.  v.  -'«  Williams,  J.,  in  Fredericks  v. 

Taylor.  134   111.,  603,  25  N.  E.,  588.  Huber,  180  Pa.  St.,  572,  37  Atl.,  00. 

In  Johnson  v.  Hall.  83  Ga.,  281,  9  20  Daniel  v.  Ferguson,   (1891)    2 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT.  11 

the  coming  in  of  the  bill  stating  a  sufficient  case  for  the  relief, 
without  notice  to  the  opposite  party.  Special  injunctions  are 
granted  for  the  prevention  of  irreparable  injury,  as  in  cases  of 
waste,  where  the  preventive  aid  of  equity  is  the  ultimate  and 
only  relief  sought.  They  are  generally  granted  upon  notice 
to  the  defendant,  as  in  cases  of  injunction  for  the  infringement 
of  patents,  and  are  not  allowed  as  of  course  upon  the  coming  in 
of  the  bill.^^  Injunctions  in  the  courts  of  the  United  States, 
being  usually  granted  only  upon  notice  to  the  opposite  party, 
are  regarded  as  falling  within  the  class  of  special  injunctions, 
and  when  resisted  under  the  notice  they  will  not  be  granted 
except  upon  a  strong  showing  of  irreparable  injury.^^ 

§  7.  Bill  should  show  some  primary  equity;  plaintiff  must 
not  be  guilty  of  laches.  Except  in  cases  of  special  injunctions 
to  stay  waste  or  prevent  other  irreparable  injury,  the  bill 
should  generally  show  some  primary  equity  in  aid  of  which 
the  injunction  is  asked,  and  the  relief  is  granted  as  ancillary  to 
or  in  support  of  the  primary  equity  whose  enforcement  is  thus 
sought.^2  And  it  is  incumbent  upon  the  party  seeking  relief 
by  interlocutory  injunction  to  show  some  clear  legal  or  equita- 
ble rights,^^  and  a  well  grounded  apprehension  of  immediate 
injury  to  those  rights.^'*  So  it  is  requisite  that  a  complainant 
seeking  the  aid  of  a  court  of  equity  by  injunction  shall  not 

Ch.,    27;     Von    Joel    v.    Hornsey,  si  Perry  v.   Parker,  1  Wooclb.  & 

(1895)    2   Ch.,   774,   65   L.   J.  N.   S.  M.,  280. 

Ch.,  102.  32  Patterson    v.    Miller,    4    Jones 

30  See,  as  to  distinction  between  Eq.,    451 ;    Washington    v.    Emery, 

common  and    special    injunctions,  lb.,    29;    Scofield     v.    Bokkelen,     5 

Woodworth    v.    Rogers,    3    Woodb.  Jones  Eq.,  342;   McRae  v.  Atlantic 

&    M.,    135;    Purnell    v.    Daniel,    8  &   N.   C.  R.  Co.,  lb.,  395. 

Ired.   Eq.,   9;    Troy  v.   Norment,   2  s.;  Scott  t;.  Burton,  2  Ashm.,  312; 

Jones      Eq.,      318;      Peterson       v.  McGinnis   v.   Friedman,     2    Idaho, 

Matthis,    3    Jones    Eq.,    31;    Chad-  393,    17   Pac,    635. 

well  V.  Jordan,   2  Tenn.  Ch.,  635;  s*  Kean  v.  Colt,  1  Halst.  Ch.,  365. 

Patterson  v.  Gordon,  3  Tenn.  Ch.,  For  an  interesting  discussion  of  the 

18.     But  see  Anderson  v.  Noble,  1  doctrine    of    "irreparable    injury" 

Drew.,  143;  Magnay  v.  Mines  Roy-  as  applied  to  applications  for  relief 

al  Co.,  3  Drew.,  130.  by     interlocutory     injunction,    see 


12  INJUNCTIONS.  [chap.  I. 

have  been  guilty  of  laches  or  delay  in  the  assertion  of  his 
rights;  for,  while  delay  may  not  amount  to  proof  of  acquies- 
cence in  the  wrong  for  which  he  seeks  redress,  it  may  yet 
suffice  to  prevent  his  obtaining  relief  by  injunction.^^.  And 
where,  in  addition  to  plaintiff's  delay  in  pressing  his  suit  to 
final  hearing,  it  appears  that  the  benefit  resulting  to  him 
from  the  granting  of  a  final  injunction  will  be  entirely  dis- 
proportionate to  the  injury  to  the  defendant  and  to  the  public 
resulting  therefrom,  the  relief  will  be  denied  and  he  will  be 
remitted  to  his  legal  remedy  for  the  vindication  of  his  rights.^^ 
And  especially  will  laches  constitute  a  bar  to  equitable  relief 
by  injunction  where  public  interests  would  be  prejudiced  by 
the  granting  of  the  writ  and  in  such  case  a  very  slight  delay 
upon  the  part  of  the  suitor  will  deprive  him  of  the  right  to 
invoke  the  aid  of  the  court.^"  But  where,  although  the  plaintiff 
has  suffered  a  long  time  to  elapse  before  finally  seeking  the  aid 
of  a  court  of  equity,  he  has  during  all  this  time  frequently 
protested  to  the  defendant  and  urged  him  to  cease  doing  the 
acts  sought  to  be  enjoined,  the  doctrine  of  laches  does  not  apply 
and  such  delay  will  not  constitute  a  bar  to  the  interposition  of 
the  court  by  injunction.^s. 

§  8.    Relief  not  usually  granted  when  legal  right  in  doubt. 

The  writ  of  injunction,  being  largely  a  preventive  remedy, 
will  not  ordinarily  be  granted  where  the  parties  are  in  dis- 
pute concerning  their  legal  rights,  until  the  right  is  estab- 
lished at  law.-**^    And  if  the  right  for  which  protection  is  sought 

Commonwealth  v.  Pittsburgh  &  C.        "•'■  Becker  v.  L.  &  M.  fcj.  Ry.  Co., 

R.  Co.,  24  Pa.  St.,  159.  188  Pa.  St.,  484,  41  Atl.,  612;  Fisk 

:(•' Dulin  V.  Caldwell,  28  Ga.,  117;  v.  City  of  Hartford,  70  Conn..  720, 

Attorney-General  v.  Sheffield  G.  C.  40  All.,  906,  66  Am.  St.  Rep.,  147. 
Co.,  3  De  Gex,  M.  &  G.,  304;  Mun-        ■fT  Keeling  v.  P.,  V.'&  C.  R.  Co., 

cey  V.  Joest,  74  Ind.,  409;  Heilman  205  Pa.  St.,  31,  54  Atl.,  485;  Clark 

V.   L.  &  A.   S.  R.  Co.,  175  Pa.   St.,  v.  C.  &  A.  I.  &  I.  Co.,  45  Neb.,  798, 

188,  34  Atl.,  637;   Nesinger  v.  C.  &  64  N.  W.,  239. 

H.  T.  Co.,  203  Pa.  St.,  265,  52  Atl.,         '■'^  Lonsdale  Co.  v.  City  of  Woon- 

197;    Stewart  Wire  Co.  v.  L.  C.  &  socket,  21  R.  I..  498,  44  Atl..  929. 
N.  Co.,  203  Pa.  St.,  474,  53  All..  352.  "'  Harl    v.    Mayor    of    Albany.    3 


CHAP.  J.J 


GENERAL  NATURE  OF  WR[T. 


13 


is  dependent  upon  disputed  questions  of  law  which  have  never 
been  settled  by  the  courts  of  the  state,  and  concerning  which 
there  is  an  actual  and  existing-  dispute,  equity  will  withhold 
relief  until  the  questions  of  law  have  been  determined  by  the 
proper  courts.^*^  Where,  however,  the  parties  are  at  issue 
upon  a  question  of  legal  right  and  it  is  necessary  to  preserve 
their  rights  in  statu  quo  until  the  determination  of  the  con- 
troversy, an  interlocutory  injunction  may  properly  be 
allowed.-*^  In  such  cases  courts  of  equit}^  do  not  assume  juris- 
diction to  dispose  of  the  legal  rights  in  controversy,  but  confine 
themselves  to  protecting  those  rights  as  they  then  are,  pend- 
ing an  adjudication  upon  the  legal  questions  involved.^-  And 
it  is  proper  to  accompany  an  injunction  granted  under  such 


Paige,  213;  Mammoth  Vein  Co.'s 
Appeal,  54  Pa.  St.,  183.  And  see 
Perry  v.  Pa-ker,  1  Woodb.  &  M., 
280;  Chesapeake,  O.  &  C.  Co.  v. 
Young,  3  Md.,  480;  Mayor  v.  Car- 
diff Water-works  Co.,  4  De  Gex  & 
J.,  596;  Muir  v.  Howell,  37  N.  J. 
Eq.,  39.  In  Mammoth  Vein  Coal 
Co.'s  Appeal,  54  Pa.  St.,  183,  which 
was  a  bill  for  an  injunction  where 
parties  claimed  under  different 
leases  of  the  same  coal  veins,  the 
relief  was  denied,  the  court, 
Thompson,  J.,  saying:  "It  ought 
not  to  be  forgotten  that  a  prelimi- 
nary injunction  is  a  restrictive  or 
prohibitory  process,  designed  to 
compel  the  party  against  whom  it 
is  granted  to  maintain  his  status 
merely  until  the  matters  in  dispute 
shall  by  due  process  of  the  courts 
be  determined;  the  sole  foundation 
for  such  an  order  being,  in  addition 
to  cases  of  the  invasion  of  unques- 
tioned rights,  the  prevention  of  ir- 
reparable mischief  or  injury.  As 
a  preliminary  injunction  is,  in  its 
operation,     somewhat     like     judg- 


ment and  execution  before  trial,  it 
is  only  to  be  resorted  to  from  a 
pressing  necessity,  to  avoid  injuri- 
ous consequences  which  can  not  be 
repaired  under  any  standard  of 
compensation.  It  is  therefore  a 
preventive  remedy  only." 

10  Stevens  v.  Paterson  &  N.  R. 
Co.,  5  C.  E.  Green,  126;  Kigbee  v. 
Camden  &  A.  R.  &  T.  Co.,  lb.,  435; 
Citizens  Coach  Co.  v.  Camden 
Horse  R.  Co.,  29  N.  J.  Eq.  (2 
Stew.),  299;  Long  Branch  Com- 
missioners V.  West  End  R.  Co.,  Xb., 
567.  See  also  Hackensack  Im- 
provement Commission  iK  New  Jer- 
sey Midland  R.  Co.,  7  C.  E.  Green, 
94;  Newark  Aqueduct  Board  v. 
City  of  Passaic,  45  N.  J.  Eq.,  393, 
18  Atl.,  106,  affirmed  in  46  N.  J. 
Eq.,  552,  22  Atl.,  55;  Pennsylvania 
R.  Co.  r.  N.  D.  &  N.  J.  J.  C.  R.  Co., 
53  N.  J.  Eq.,  178,  32  Atl.,  220. 

11  Harman  v.  Jones,  1  Cr.  &  Ph., 
299;  Lowndes  t'.  Settle,  33  L.  J. 
Ch.,  451. 

■i-  Harman  t\  Jones,  1  Cr.  &  Ph., 
299. 


14  INJUNCTIONS.  [chap.  I. 

circumstances  with  a  provision  for  a  speedy  investigation  at 
law  of  the  questions  involved  in  dispute.'*^ 

§  9.  Substantial  injury  must  be  shown;  exception;  relief 
not  granted  to  encourage  litigation,  nor  where  it  would  operate 
inequitably.  Substantial  and  positive  injury  must  always  be 
made  to  appear  to  the  satisfaction  of  a  court  of  equity  before 
it  will  grant  an  injunction,  and  acts  which,  though  irregular 
and  unauthorized,  can  have  no  injurious  result,  constitute 
no  ground  for  the  relief. ^^  But  where  the  act  complained  of 
is  such  that  by  its  repetition  or  continuance  it  may  become 
the  foundation  of  adverse  rights,  equity  may  interfere  by 
injunction,  although  no  actual  or  substantial  injury  be 
shown.^^  But  the  relief  in  such  case  should  be  granted  only 
to  the  extent  that  is  necessary  for  the  protection  and  vindi- 
cation of  the  plaintiff's  rights.'^^  And  it  is  a  fatal  objection 
to  granting  an  injunction  for  the  protection  of  property  pend- 
ing litigation  that  the  party  seeking  the  relief  has  no  title  to 
or  interest  in  the  property,  and  no  claim  to  the  ultimate  relief 
sought  by  the  litigation.'*'''  Nor  will  relief  by  injunction  be 
granted  where  it  would   operate  inequitably  or  contrary  to 

43  Harman  v.  Jones,  1  Cr.  &  Ph.,  Port  Arthur  C.  &  D.  Co.,  31  C.  C. 
299.  A.,    99,   87    Fed.,    512;    Ulbricht   v. 

44  Rogers  v.  Michigan  S.  &  N.  I  Eufaula  Water  Co.  86  Ala.,  587,  6 
R.  Co.,  28  Barb.,  539;  Head  v.  So.,  78,  4  L.  R.  A.,  572,  11  Am.  Si. 
James,  13  Wis.,  641;  Bank  of  Cali-  Rep.,  72.  And  see  Gilfillan  v. 
fornia  v.  Fresno  C.  &  I.  Co.,  53  Cal.,  Grier,  145  Pa.  St.,  317,  22  Atl.,  593. 
201;  Atlantic  City  W.  W.  Co.  v.  -ir,  Amsterdam  Knitting  Co.  v. 
Consumers  W.  Co.,  44  N.  J.  Eq.,  Dean,  162  N.  Y.,  278,  56  N.  E.,  757; 
427;  Reemelin  v.  Mosby,  47  Ohio  Walker  v.  Emerson,  89  Cal.,  456,26 
St.,   570,   26   N.   E.,   717;    Adler  v.  Pac,  968. 

Met.  El.  R.  Co.,  138  N.  Y.,  173,  33  N.  46  Ulbricht  v.  Eufaula  Water  Co., 

E.,  935;   Dana  v.  Craddock,   66  N.  86  Ala.,  587,  6  So.,  78,  4  L.  R.  A., 

H.,  593,  32  Atl.,  757;    Christian  v.  572,  11   Am.    St.   Rep.,   72;    dictum 

City  of  St.  Louis,  127  Mo.,  109,  29  in  Franklin  v.  Pollard  Mill  Co.,  88 

S.  W.  996;    Bobins  v.  Latham,  134  Ala.,  318,  6  So.,  685. 

Mo.,  466,  36  S.  W.,  33;  Barnard  v.  47  state  v.  MoGlynn,  20  Cal.,  233. 

Commissioners,  172  111.,  391,  50  N.  See   also   O'Brien   v.   O'Connell,    7 

E.   120;    McFadden    v.  Owens,    54  Hun,  228. 
Ark.,  118,  15  S.  W.,  84;     Davis  v. 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT,  15 

the  real  justice  of  the  case.'**  And  in  no  event  will  an  injunc- 
tion be  granted  whose  effect  would  be  to  encourage  litigation 
and  a  multiplicity  of  suits,  thereby  retarding  instead  of  pro- 
moting justice.*^  Nor  can  a  suitor  invoke  the  aid  of  a  court  of 
equity  to  assist  him  in  carrying  on  an  unlawful  business.^*^ 

§  10.  Utmost  care  necessary;  effect  of  acquiescence.  Inter- 
locutory injunctions  being  often  sought  for  the  purpose  of 
harassing  and  annoying  defendants,  the  utmost  care  should  be 
observed  in  the  exercise  of  the  jurisdiction,  and  the  relief  should 
only  be  allow^ed  upon  a  clear  necessity  being  shown  of  afford- 
ing immediate  protection  to  some  right  or  interest  of  the  party 
complaining  w^iich  would  otherwise  be  seriously  injured  or 
impaired.^i  And  where  the  plaintiff  will  suffer  no  immediate 
injury  from  the  acts  complained  of  and  the  injury,  if  any,  is 
of  such  a  nature  that  it  can  be  as  easily  remedied  upon  final 
hearing,  a  preliminary  injunction  is  properly  denied.^-  And 
where  a  state  of  affairs  connected  with  the  property  touching 
which  an  injunction  is  sought  has  remained  undisturbed  for 
a  long  period  of  years,  and  is  such  a  condition  of  things  as  will 
require  an  injunction  as  the  ultimate  relief  in  case  complain- 
ant succeeds  in  his  cause,  a  preliminary  injunction  will  be 
withheld,  no  alteration  or  change  being  shown  as  threatened  or 
impending.^3  And  it  may  be  asserted  as  a  general  rule  that 
long  acquiescence  on  the  part  of  plaintiff'  in  a  state  of  things 
which  he  afterwards  seeks  to  enjoin  w411  prevent  him  from 
obtaining  relief  by  interlocutory  injunction,^*  even  though  it 

48  Troy  &  Boston  R.  R.  Co.  v.  B.,  si  Osborn  v.  Taylor,  5  Paige,  515. 
H.  T.  &  W.  R.  Co.,  86  N.  Y.,  107;  See  Beebe  v.  Guinault,  29  La.  An., 
Mott  V.  Underwood,  148  N.  Y.,  463.     795. 

42   N.   E.,   1048,    51    Am.   St.   Rep.,  C2  Rend    v.    Venture  Oil   Co.,  48 

711;   Rogers  v.  O'Brien,  153  N.  Y.,  Fed.,  248. 

357,  47  N.  E.,  456;  Bowie  v.  Smith,  ss  Society   v.  Holsman,  1    Halst. 

97  Md.,  326,  35  Atl.,  625.  Ch.,  126. 

49  Endicott  v.  Mathis,  1  Stockt.,  s*  Great  Western  R.  Co.  v.  Ox- 
110.  ford  R.  Co.,  3  De  G.,  M.  &  G.,  341; 

50  Portsmouth  Brew.  Co.  v.  P.  B.  Ocean  City  Assn.  v.  Schurch,  57  N. 
&  B.  Co.,  67  N.  H.,  433,  30  Atl.,  346.  J-  Eq.,  268,  41  Atl.,  914;    Keyes  v. 


16  INJUNCTIONS.  [chap.  I. 

may  not  be  sufficient  to  deprive  him  of  injunctive  relief  upon 
the  final  hearing.  ^^  j\j^^  vi^here  plaintijff  has  been  guilty  of 
long  delay  in  asserting  his  rights,  while  a  final  hearing  may 
be  had  in  comparatively  a  short  time,  a  preliminary  injunction 
should  be  denied.^*^  And  it  is  held  that  the  acquiescence  which 
will  bar  relief  must  be  such  as  proves  plaintiff's  assent  to  the 
acts  complained  of,  and  to  the  injuries  which  may  reasonably 
be  anticipated  to  flow  from  such  acts.^'^ 

§  10  a.  Mere  acquiescence  or  delay  as  defense.  It  is  to  be 
observed  that  the  doctrine  of  laches  or  acquiescence  as  a 
defense  to  actions  for  injunctions,  when  unaccompanied  by 
circumstances  which  would  create  an  estoppel,  is  limited  to 
cases  of  an  equitable  nature  exclusively  or  to  those  in  which 
the  legal  right  in  aid  of  which  the  injunction  is  sought  has 
been  lost  by  prescription  or  limitation;  and  where  the  legal 
right  still  exists,  no  period  of  inaction  or  delay  merely,  when 
unaccompanied  by  any  of  the  elements  of  an  estoppel,  will  con- 
stitute a  bar  to  equitable  relief  unless  continued  so  long  and 
under  such  circumstances  as  to  bar  the  right  itself.^^ 

^  11.  Right  to  preliminary  injunction  discretionary;  plain- 
tiff may  be  questioned  as  to  motives ;  no  concealment  tolerated. 

The  right  to  a  preliminary  injunction  is  not  ex  deblto 
justitiae,  but  the  application  is  addressed  to  the  sound  discre- 
tion of  the  court,  to  be  guided  according  to  the  circumstances 
of  the  particular  case.^^    Hence  it  is  the  right  and  duty  of  the 

Pueblo  S.  &  R.  Co.,  31  Fed.,  560;  r,8  Menendez  v.  Holt,    128    U.    S.. 

Waite  V.  Chichester  Chair  Co.,  45  514,  9  Sup.  Ct.  Rep.,  143;  Galway  v. 

Fed.,  258;  Price  v.  Joliet  Steel  Co.,  M.  E.  R.  Co.,  128  N.  Y.,  132,  28  N. 

46  Fed.,  107;   Blakey  v.  Kurtz,  78  E.,  479;    Ackerman  v.  True,  175  N. 

Fed.,  368.     But  see  Lux  v.  Haggin,  Y.,  353,  67  N.  E.,  629;  Coombs  r.  S. 

69  Cal.,  255.  L.  &  F.  D.  Co.,  9  Utah,  322,  34  Pac, 

•'•-'Butler    V.    Egge,    170    Pa.     St.,  248;  Riguey  v.  Tacoma  L.  &  W.  Co.. 

239,   32  Atl.,  402;    Levi  v.   Schoen-  9  Wash.,  576,  37  Pac,  297. 

thai,  57  N.  .L  Eq.,  244,  41  Atl.,  105.  59  stoddart  v.  Vanlaningham,  14 

•''"Pope  Mfg.  Co.  V.  Johnson,  40  Kan.,  18;    Akin  v.  Davis,  14  Kan., 

Fed.,  584.  143;  Olmstead  v.  Koester,  14  Kan.. 

•'7  Lux  V.  Haggin.  69   Cal.,  255.  463;   Welde  v.  Scotten.  59  Md..  72; 


CHAP.  I.J  c!i:\ki;al  .\ATUiii-;  of   w  uii".  17 

court  or  officer  granting  tlie  writ  to  require  a  full  disclosure 
of  the  facts,  and  where  it  is  apparent  that  such  disclosure 
has  not  been  made  the  relief  may  properly  be  refused.^"  And 
where  it  appears  to  the  court  that  the  cause  of  action  is  trivial 
and  that  the  suit  is  not  being  prosecuted  by  the  plaintiff  in 
good  faith  and  in  his  own  interest,  the  court  may  require  him 
to  be  questioned  as  to  his  motives,  and  may,  in  the  exercise  of 
its  discretion,  deny  a  preliminary  injunction  upon  his  refusal 
to  answer.^  1  There  must  be  no  misrepresentation  or  con- 
cealment of  important  facts,  and  if  plaintiff  keeps  in  the  back- 
ground material  facts  which  are  important  to  enable  the  court 
to  form  its  judgment,  such  conduct  is  of  itself  sufficient  to 
prevent  the  interposition  of  the  court.''-  And  if  upon  the 
application  for  a  preliminary  injunction  it  is  doubtful  what 
may  be  ascertained  to  be  the  real  facts  of  the  case  upon  final 
hearing,  and  if  the  rights  of  plaintiff'  will  suffer  no  serious 
injury  if  not  enforced  until  such  hearing,  the  court  may,  in 
the  exercise  of  a  sound  discretion,  refuse  the  injunction  in 
limine.^^  If,  how^ever,  the  danger  threatened  is  of  such  a 
nature  that  it  can  not  easily  be  remedied  in  case  of  a  refusal 
of  relief,  and  the  answer  does  not  deny  that  the  act  charged  is 
contemplated,   an  interlocutory  injunction   should  be  allowed 

North  Carolina  R.   Co.  t).   Drew,  3  an    absolute   duty   on   the    part   of 

Woods,  674;     Morris  v.  Bean,,  123  the  court  to  grant  the   writ.     At- 

Fed.,  618.     And  in  the  application  torney-General    v.    Railroad     Com- 

of  the  doctrine  that  the  granting  panies,  35  Wis.,  425. 

of    an    injunction    is    a   matter    of  <•"  Reddall  v.  Bryan,  14  Md.,  444; 

sound    judicial    discretion,     a    dis-  County  Commissioners  v.  Franklin 

tinction  has    been   drawn  between  Coal    Co.,    45    Md.,   470;    Morris   v. 

cases  where  it  is   sought   in  aid  of  Bean,  123  Fed.  618. 

private  right,  and  where  it  is  asked  "i  People  v.  Butler,  24  Col.,  401, 

in  some  matter  publici  juris;  and  51   Pac,  510. 

in  the  latter  class  of  cases  it  is  held  «-  Sprigg   v.   Western    Telegraph 

that  the  remedy  being  in  the  na-  Co.,  46   Md.,   67;    Tifel    v.  Jenkins, 

ture     of    a     prerogative      remedy,  95  Md.,  665,  53  Atl.,  429. 

sought  by  the  Attorney-General  in  •-■  Conley    v.    Fleming,    14    Kan , 

behalf   of   the  people,   it   is   not    a  381. 
matter  of  judicial    discretion,    but 
2 


18 


INJUNCTIONS. 


[chap.  I. 


unless  the  equities  of  the  bill  are  satisfactorily  refuted  by 
defendant.*^*  But  the  circumstance  that  the  object  of  the 
action  may  be  defeated  by  refusing  a  temporary  injunction 
is  not  of  itself  sufficient  to  deprive  the  court  of  all  discretion- 
ary power  in  the  matter.^^ 

§  12.  Prevention  of  multiplicity  of  suits.  The  prevention 
of  vexatious  litigation  and  of  a  multiplicity  of  suits  consti- 
tutes a  favorite  ground  for  the  exercise  of  the  jurisdiction  of 
equity  by  way  of  injunction;  and  it  may  be  laid  down  as  a 
general  rule  that  whenever  the  rights  of  a  party  aggrieved 
can  not  be  protected  or  enforced  in  the  ordinary  course  of 
proceedings  at  law,  except  by  numerous  and  expensive  suits, 
a  court  of  equity  may  properly  interpose  and  afford  relief  by 
injunction.^^     And  where  there  is  one  common  right  in  con- 


64  United  States  v.  Duluth,  1  Dil- 
lon, 469.  This  was  a  bill  for  an  in- 
junction to  protect  certain  im- 
provements undertaken  by  the 
United  States  in  its  navigable 
waters  from  injury  resulting  from 
works  carried  on  by  state  author- 
ity. Numerous  affidavits  of  engi- 
neers and  others  were  offered  on 
both  sides  as  to  the  effect  of  the 
work  sought  to  be  enjoined,  the 
opinions  expressed  being  quite  con- 
flicting. The  court,  Miller,  J.,  say: 
"The  affidavits  on  both  sides  are 
numerous.  They  demonstrate  what 
all  courts  and  juries  have  so  often 
felt,  that  where  the  question  is  one 
of  opinion  and  not  of  fact,  though 
that  opinion  should  be  founded  on 
scientific  principles  or  professional 
skill,  the  inquiry  is  painfully  un- 
Batisfactory,  and  the  answers 
strangely  contradictory.  In  this 
emergency  I  am  relieved  by  a  prin- 
ciple which  has  generally  governed 
me,  and  which,  I  believe,  governs 


nearly  all  judges  in  applications  for 
preliminary  injunctions,  it  is  that, 
when  the  danger  or  injury  threat- 
ened is  of  a  character  which  can 
not  be  easily  remedied  if  the  in- 
junction is  refused,  and  there  is  no 
denial  that  the  act  charged  is  con- 
templated, the  temporary  injunc- 
tion should  be  granted,  unless  the 
case  made  by  the  bill  is  satisfacto- 
rily refuted  by  the  defendant.  In 
this  case  I  am  not  satisfied  that  it 
is  so  refuted." 

65  Young  V.  Campbell,  75  N.  Y., 
525. 

66  Pennsylvania  C.  Co.  v.  Dela- 
ware &  H.  C.  Co.,  31  N.  Y.,  91; 
Mills  V.  New  Orleans  Seed  Co.,  65 
Miss.,  391,  4  So.,  298;  National 
Park  Bank  v.  Goddard,  131  N.  Y.. 
494,  30  N.  E.,  566;  Hagan  v.  Blin- 
dell,  6  C.  C.  A.,  86,  56  Fed.,  696; 
Sanford  v.  Poe,  16  C.  C.  A.,  305, 
69  Fed.,  546,  60  U  R.  A.,  641;  Mc- 
Connaughy  r.  Pennoyer,  43  Fed., 
339.    For  an  elaborate  and  exhaus- 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT.  19 

troversy  which  is  to  be  established  by  or  against  several  per- 
sons, one  person  asserting  the  right  against  many  or  many 
against  one,  equity  may  interfere,  and  instead  of  permitting  the 
parties  to  be  harassed  by  a  multiplicity  of  suits,  determine 
the  whole  matter  in  one  action.^'^  But  the  rale  has  no  appli- 
cation where  there  is  no  danger  of  a  multiplicity  of  suits 
between  the  parties  to  the  bill  but  only  a  possibility  that  other 
persons,  not  parties,  might  bring  other  suits  for  the  enforce- 
ment of  rights  asserted  by  them  upon  substantially  the  same 
basis  of  facts.*^^  And  the  plaintiff  may  be  required  first  to 
establish  his  right  at  law  as  a  condition  precedent  to  relief 
in  equity.*'^ 

§  13.     Relative    convenience    and    inconvenience    balanced. 

Where  the  legal  right  is  not  sufficiently  clear  to  enable  a 
court  of  equity  to  form  an  opinion,  it  will  generally  be  gov- 
erned in  deciding  an  application  for  a  preliminary  injunction 
by  considerations  of  the  relative  convenience  and  inconve- 
nience which  may  result  to  the  parties  from  granting  or  with- 
holding the  writ.  And  where,  upon  balancing  such  considera- 
tions, it  is  apparent  that  the  act  complained  of  is  likely  to 
result  in  irreparable  injury  to  complainant,  and  the  balance  of 
inconvenience  preponderates  in  his  favor,  the  injunction  will 
be  granted.  But  where,  upon  the  other  hand,  it  appears  that 
greater  danger  is  likely  to  result  from  granting  than  from 

live  review  of  the  authorities  upon  City  of  Chicago  v.  Collins,  175  111., 

the    subject   of   the    prevention    of  445,  51  N.  E.,  907,  49  L.  R.  A.,  408, 

a  multiplicity  of  suits,  see  Turner  67    Am.    St.    Rep.,    224;     Smith    v. 

V.  City  of  Mobile,  135  Ala.,  73,  33  Smith,  148  Mass.,  1,  18  N.  E.,  595; 

So.,  132.  Sang   Lung  v.    Jackson,     85     Fed., 

G"  Tenham    v.    Herbert,    2    Atk.,  502;   Morris  v.  Hitchcock,  21  App. 

483;   Sheffield  Water-works  v.  Yeo-  D.    C,    565.        And    see    Crews    v. 

mans,  2  L.  R.   Ch.  App.,  8;     Ells-  Burcham,   1   Black,  352;    Woodruff 

worth  V.   Hale,  33   Ark.,  633;    Hli-  v.  Fisher,  17  Barb.,  224. 
nois  Central  R.  Co.,  v.  Garrison,  81        ss  Dyer  v.  School  District,  61  Vt., 

Miss.,  257,  32  So.,  996,  95  Am.  St.  96,  17  Atl.,  788. 
Rep.,  469;   Hightower  v.  Mobile,  J.         «o  Pennsylvania   C.   Co.,   v.   Dela- 

&  K.  C.  R.  Co.,   (Miss.)   36  So.,  82;  ware  &  H.  C.  Co.,  31  N.  Y.,  91. 


20  INJUXCTIONS.  [chap.  I. 

withholding  the  relief,  or  where  the  iucouvenience  seems 
to  be  equally  divided  as  between  the  parties,  the  injunction 
will  be  refused  and  the  parties  left  as  they  are  until  the  legal 
right  can  be  determined  at  law  or  upon  final  hearing.'^^  And 
if  plaintiff's  rights  may  be  as  well  secured  by  a  final  injunc- 
tion, and  are  not  prejudiced  by  the  refusal  of  a  temporary 
injunction,  the  court  may  refuse  the  interlocutory  application, 
especially  when  the  injuries  which  would  result  to  defendant 
if  the  relief  were  improperly  granted  would  greatly  exceed 
the  benefits  which  might  result  to  plaintiff  if  the  injunction 
were  properly  granted."^  Indeed,  the  consideration  of  relative 
convenience  and  inconvenience  to  the  parties  is  one  of  the 
principal  guides  which  govern  courts  of  equity  in  the  matter 
of  granting  or  withholding  relief  by  interlocutory  injunction. 

""Cory  V.  Yarmouth  &  N.  R.  Co.,  124    Fed.,    156;    Foster    v.    Ballen- 

3   Hare,  593;    Shrewsbury  &  C.  R.  berg,    43   Fed.,    821;    Southwesteru 

Co.  V.  Shrewsbury  &  B.  R.  Co.,  1  B.  E.  L.  &  P.  Co.  v.  Louisiana  E. 

Sim.    (N.    S.),    410;    Attorney-Gen-  L.  Co.,  45  Fed.,  893;    Whitcomb  v. 

eral   v.  Mayor,  etc.,  1   Myl.   &  Cr..  Girard  Coal  Co.,  47  Fed.,  315;    In- 

171;    Greenhalgh  v.  Manchester  &  dianapolis  Gas  Co.  v.  City  of  Indi- 

B.  R.  Co.,  3  Myl.  &  Cr.,  784;   Har-  anapolis,  82  Fed.,  245;    Railroad  & 

rison  v.  Yerby,  87  Ala.,  185,  6  So.,  Telephone  Co.  v.  Board  of  Equal- 

3;    Highland    A.   &    B.    R.     Co.     v.  izers,  85  Fed.,  302;  Amelia  Milling 

Birmingham    U.    Ry.    Co.,   93   Ala.,  Co.   v.   Tenn.   C,   I.  &   R.  Co.,   123 

505,  9  So.,  568;    Newark  P.  R.  Co.  Fed.,    811.        And     see     Hilton     v. 

V.    Township    of    East    Orange,    53  Granville,  1  Cr.  &  Ph.,  283;    Morris 

N.  J.  Eq.,  248,  31  Atl.,  722;  Daugh-  &   E.   R.   Co.   v.    Prudden,  5   C.   B. 

erty  v.  Kittanning  I.  &  S.  Co.,  178  Green,   530;    Hackensack   Improve- 

Pa.  St.,  215,  35  Atl.,  1111;  Kohn  v.  ment    Commission    v.   New   Jersey 

Old    T.    M.    Co.,    2    Utah,   13;     Mc-  Midland  R.  Co.,  7  C.  B.  Green,  94; 

Gregor  v.  Silver  King  Mining  Co.,  McCorkle  v.  Brem,  76  N.  C,  407; 

14  Utah,  47,  45  Pac,  1091,  60  Am.  Dyke  v.   Taylor,   3   DeG.,   F.   &  J.. 

St.  Rep.,  883;  Crescent  Mining  Co.  467;  Fielden  y.  Lancashire  &  Y.  R. 

V.  Silvf-r  King  Mining  Co.,  14  Utah,  Co.,  2  De  G.  &  Sm.,  531 ;   Elwes  v. 

57,  45  Pac,  1093;   Bartlett  v.  Bart-  Payne,    12   Ch.    D..     468;      Pioneer 

lett   &    Son,   116   Wis.,    450,    93    N.  Wood  Pulp  Co.  v.  Bensley,  70  Wis. 

W.,  473;   City  of  Newton  v.  Levis.  476;    Higgins   v.  Westervelt,   44  N. 

25  C.  C.  A.,  161,  79  Fed.,  715;    Al-  J.  Eq..  254. 

lison    V.    Carson,    32    C.    C.    A.,    12,  "'  Olnistead  v.  Koester,  14  Kan.. 

88  Fed.,  581 ;  Denver  &  R.  G.  R.  Co.  463. 
V.  United  States,  59  C.  C.  A.,  579, 


CllAl'.  l.|  GENERAL    NATIRK    OF    WHIT.  21 

And  upon  the  same  principle,  a  temporary  injunction  may 
properly  be  modified  where  by  so  doing  the  bnrden  imposed  by 
the  injunction  upon  the  defendant  will  be  lightened  without 
any  corresponding  injury  to  the  plaintiff's  rights.'^-  If,  how- 
ever, a  clear  case  of  irreparable  injury  is  showm  as  likely  to 
result  to  complainant  unless  the  injunction  is  granted,  and 
it  does  not  appear  that  the  issuing  of  the  writ  will  work  any 
such  injury  to  defendants,  the  relief  will  be  granted.*^^ 

55  14.  Possession  rarely  interfered  with  by  injunction.  The 
object  of  an  interlocutory  injunction  being  the  preservation 
of  the  property  or  rights  in  controversy  until  a  full  and  final 
hearing  upon  the  merits,  where  there  are  conflicting  rights 
to  the  possession  of  property,  either  personal  or  real,  a  court 
of  equity  will  not  upon  the  unsupported  showing  of  the  bill 
grant  an  injunction  whose  effect  would  be  to  award  possession, 
and  thus  determine  the  merits  of  the  case  upon  an  ex  parte 
application.'^^  Nor  will  parties  in  possession,  whose  rights 
were  acquired  by  purchase  at  a  sheriff' 's  sale  from  one  in 
peaceable  possession,  be  enjoined  from  the  use  and  enjoy- 
ment of  the  property  by  other  purchasers  claiming  adversely  to 
the  first  vendor,  each  purchaser  being  ignorant  at  the  time  of 
purchase  of  any  title  save  that  of  his  vendor."^  Nor  should  a 
court  by  preliminary  mandatory  injunction  transfer  the  posses- 
sion of  real  estate  from  the  defendant  to  the  plaintiff."^  Where, 
however,  defendant's  possession  is  but  an  interruption  of  the 
prior  and  lawful  possession  of  complainant,  whose  right  is  clear 
and  certain,  equity  may  interfere  without  compelling  complain- 
ant to  establish  his  title  by  an  action  at  law.'''"  And  an  injunction 

"-  Denver  &  R.  G.  R.  Co.  v.  Uni-  566.       And  see  Conway,  Ex  parte. 

ted    States,    59    C.    C.    A.,   579,   124  4  Ark.,  302;   McGee  v.  Smith,  1  C. 

Fed.,   156.  E.  Green,  462. 

Ti  Brown  v.   Pacific  Cable  Co.,  5  '••  Kelly  v.   Morris,  31   Ga.,  54. 

Blatch.,  525.  '«  Catholicon  Hot  Springs  Co.  v. 

"•*  Martin  v.  Broadus,  Freem.  Ch.,  Ferguson,  7  S.  Dak.,  503,  64  N.  W., 

35;    Deklyn    r.    Davis,   Hopk.    Ch.,  539. 

135;    Bettman  r.  Harness.  42  West  ""Conway,  Ex  parte,  4  Ark.,  302. 
Va.,  433,  26  S.  E.,  271,  36  L.  R.  A., 


22  *  INJUNCTIONS.  [chap.  I. 

restraining  plaintiff  in  an  action  at  law  from  molesting  defend- 
ants in  the  possession  and  enjoyment  of  their  property  will 
not  prevent  the  plaintiff  from  proceeding  with  his  action  to 
try  the  right.'^  But  to  warrant  an  injunction  against  the  dis- 
posal of  personal  property,  plaintiff  must  show  a  specific 
right  to  the  property,  and  that  there  is  danger  of  its  loss  unless 
the  court  shall  interfere.'^  And  as  between  tenants  in  common 
of  personalty,  equity  is  averse  to  interfering  by  injunction 
with  the  possession  of  one  of  the  co-tenants,  since  they  are 
equally  entitled  to  possession.^*^  But  it  is  proper  upon  a  bill 
seeking  a  division  of  personal  property  and  an  account  of 
rents  and  profits  to  enjoin  a  co-tenant,  in  possession,  from 
waste  or  destruction  of  the  property,  and  from  removing  it 
beyond  the  jurisdiction  of  the  court.'^^ 

^  15.  Discretion  not  controlled  by  mandamus;  courts  of 
co-ordinate  jurisdiction.  It  has  already  been  observed  that  the 
granting  or  withholding  of  an  interlocutory  injunction  is  a 
matter  resting  in  the  sound  discretion  of  the  court,  to  be  exer- 
cised according  to  the  circumstances  of  each  particular  case.82 
Mandamus  will  not,  therefore,  lie  to  control  an  inferior  court 
or  judge  in  the  exercise  of  such  discretion,  and  to  compel  him 

T8  Mayor     r.    Magnon,     4     Mart,  turn  to  be  subservient  to  the  other. 

(La.),  O.   S.,  2.  This  discretion  in  some  cases  fol- 

'•j  Ximenes  v.   Franco,    1    Dick.,  lows  the  law  implicitly;   in  others 

■j^49  assists    it   and   advances    the   rem- 

so  Blood  v.  Blood,  110  Mass.,  545.  edy;    in   others   again    it    relieves 

81  Low  V.  Holmes,  2  C.  E.  Green,  against  the  abuse  or  allays  the 
5^43  rigor  of  it;  but  in  no  case  does  it 

82  Reddall  v.  Bryan,  14  Md.,  444.  contradict  or  overturn  the  grounds 
This  discretion,  however,  is  by  no  and  principles  thereof,  as  has  been 
means  an  arbitrary  one,  and  is  to  sometimes  ignorantly  imputed  to 
be  exercised  in  acordance  with  this  court.  That  is  a  discretionary 
established  principles  of  law  and  power  which  neither  this  nor  any 
equity.  It  has  been  well  said  that  other  court,  not  even  the  highest, 
"the  discretion  which  is  to  be  ex-  acting  in  a  judicial  capacity,  is  by 
ercised  here  is  to  be  governed  by  the  constitution  intrusted  with." 
the  rules  of  law  and  equity,  which  Lord  Romilly,  Master  of  the  Rolls, 
are  not  to  oppose,  but  each  in  il.-;  in  Haywood  v.  Cope,  25  Beav.,  151, 


CHAP.  I.] 


GENERAL    NATURE    OF    WRIT. 


23 


either  to  grant  or  to  dissolve  an  injunction.^^  But  where  one 
court  has  in  the  exercise  of  its  discretion  refused  an  applica- 
tion for  an  interlocutory  injunction,  it  is  merely  a  question 
of  courtesy  whether  another  of  co-ordinate  jurisdiction  and 
equal  powers  shall  grant  the  relief.  In  such  case  the  jurisdic- 
tion of  the  second  court  can  in  nowise  be  affected  by  the 
refusal  of  the  first;  nor  can  the  first  afterward  vacate  the 
injunction  ordered  by  the  second,  except  upon  a  regular  hear- 
ing of  a  motion  to  dissolve.*^^  But  where  one  of  two  courts  of 
co-ordinate  jurisdiction  and  powers  has  obtained  jurisdiction 
of  a  cause  it  should  retain  it  until  finally  disposed  of;  and 
although  both  courts  may  have  authority  to  grant  injunctions, 
yet  if  one  tribunal  properly  having  cognizance  of  the  case  has 
exercised  its  jurisdiction  the  other  should  refuse  to  interfere.^^ 


quoting  from  the  Master  of  the 
Rolls,  in  Burgess  v.  Wheate,  1 
Eden,  214. 

><•■!  Hays,  Ex  parte,  26  Ark.,  510; 
McMillen  v.  Smith,  lb.,  613;  Ex 
parte  City  Council  of  Montgomery, 
24  Ala.,  98;  State  v.  Judge  of  Sixth 
District  Court,  28  La.  An.,  905; 
Ex  parte  Schwab,  98  U.  S.,  240; 
People  V.  Butler,  24  Col.,  401,  51 
Pac,  510;  Detroit  &  B.  P.  R.  Co.  v. 
Frazer,  98  Mich.,  141,  56  N.  W. 
1109;  Krolik  v.  Wayne  Circuit 
Judge,  112  Mich.,  486,  70  N.  W., 
1132;  Briggs  v.  Wayne  Circuit 
Judge,  118  Mich.,  200,  76  N.  W., 
1134;  Kelsey  v.  Wayne  Circuit 
Judge,  120  Mich.,  457,  79  N.  W., 
694;  Chiera  v.  Brevoort,  97  Mich.. 
638,  57  N.  W.,  193.  And  see  State 
V.  Parish  Judge  of  St.  Bernard,  31 
La.  An.,  794;  State  v.  Judge  of 
Sixth  District  Court,  32  La.  An., 
549.  See,  contra.  Ex  parte  Con- 
way, 4  Ark.,  302;  Ex  parte  Pile,  9 
Ark.,  336.  In  Michigan  it  is  held 
that  where  all   the    questions    in- 


volved are  purely  ones  of  law  and 
there  is  a  pressing  necessity  for 
a  decision,  or  where  it  was  clearly 
beyond  the  power  of  the  judge  to 
grant  the  injunction  in  the  partic- 
ular case,  mandamus  will  lie  to 
control  the  action  of  the  lower 
court.  People  v.  Judge  of  St.  Clair 
Circuit,  31  Mich.,  456;  Thomas  v. 
Kent  Circuit  Judge,  116  Mich.,  106, 
74  N.  W.,  381;  Bogert  v.  Jackson 
Circuit  Judge,  118  Mich.,  457,  76 
N.  W.,  983;  Dodge  v.  Van  Buren 
Circuit  Judge,  118  Mich.,  189,  76  N. 
W.  315;  City  of  Detroit  v.  Hosmer, 
79  Mich.,  384,  44  N.  W.,  622;  Ionia, 
etc.  Insurance  Co.  v.  Davis,  100 
Mich.,  606,  59  N.  W.,  250,  32  L.  R. 
A.,  481;  Board  of  Supervisors  v. 
Wayne  Circuit  Judge,  106  Mich., 
166,  64  N.  W.,  42;  City  of  Alpena 
V.  Kelley,  97  Mich.,  550,  56  N.  W., 
941. 

8-t  Welch  V.  Byrns,  38  111.,  20.  And 
a  clerk  refusing  to  issue  the  writ 
may  be  punished  for  contempt.  Id. 

S5  Winn  v.  Albert,  2  Md.  Ch.,  42. 


24  INJUNCTIONS.  [CIIAl*.  I. 

Nor  will  the  prosecution  of  a  suit  in  one  court  be  enjoined 
by  a  court  of  co-ordinate  jurisdiction,  when  the  former  tri- 
bunal may  afford  adequate  relief.^*^ 

§  16.  Not  granted  against  covenant,  or  offer  to  perform. 
Equity  wull  not  grant  an  injunction  for  the  protection  of  a 
naked,  legal  right  which  complainant  and  those  under  whom 
he  claims  have  covenanted  not  to  exercise.'^"  Nor  will  the 
relief  be  granted  against  a  defendant  who  in  the  presence  of 
the  court  offers  to  carry  out  and  perform  all  that  complainant 
upon  his  own  showing  is  entitled  to.'^'*  And  where  it  is  appar- 
ent that  neither  of  the  parties  to  the  litigation  is  entitled 
to  the  exercise  of  the  right  or  privilege  in  controversy,  which 
properly  pertains  to  the  public,  a  court  of  equity,  acting  in 
behalf  of  the  public,  will  enjoin  both  parties,  although  the 
state  is  not  a  nominal  party  to  the  cause.^^ 

§  17.  When  injunction  operative;  official  notice  not  neces- 
sary. An  injunction  becomes  eft'ective  as  to  the  party  enjoined 
only  from  the  time  of  actual  notice.^*'  And  to  render  an  injimc- 
tion  binding  and  operative  upon  a  defendant  it  is  not  necessary 
that  he  should  have  been  officially  apprised  of  its  existence, 
or  actually  served  with  the  writ.  And  where  a  defendant  has 
heard  the  order  of  the  court  granting  an  injunction,  or  has 
in  any  manner  received  actual  notice  of  its  existence,  or  is 
informally  served,  he  is  as  effectually  bound  by  its  provisions 
as  if  actually  and  duly  served  with  process.-'^  So  if  an  injunc- 
tion has  been  properly  granted  it  will  be  eft'ective  if  served 

''•J  Wilson  V.  Baker,  64  Cal.,  475,  236;  Howe  v.  Willard,  40  Vt.,  654 

2    Pac,   253.  Farnsworth  v.  Fowler,  1  Swan,  1 

''■  Bosley  v.  McKim,  7  Har.  &  J.  Skip    v.    Harwood,    3     Atk.,     564 

468.  Anon.,  lb.,  567;   Hearn  v.  Tennant. 

">' Behn  v.  Young,  21  Ga.,  207.  14  Ves.,  136;    McNeil  v.  Garratt,  1 

"!' Wharf  Case,  3  Bland,  361.  Cr.  &  Ph.,  98;    Golden  Gate  C.  H. 

r">  Ramsdall  v.  Craighill,  0  Ohio,  M.  Co.  v.   Superior  Court,  65  Cal.. 

H)7.  187,  3   Pac,   628;    Fowler  v.   Beck- 

»i  Milne  v.  Van  Buskirk,  9  Iowa,  man,  66  N.  H.,  424,  30  Atl.,  1117. 
558;    Hull  v.  Thomas,  3  Edw.  Ch  , 


(11  AT.  l.J  GENERAL    NATURE    OF    WRIT.  25 

upon  defendants  beyond  the  jurisdiction  of  the  court,  or  the 
limits  of  the  state,  it  only  being  necessary  that  they  should 
be  apprised  of  the  order  of  the  court  to  render  it  binding."- 

J;  18.  Threatened  injury  sufficient;  difficulty  in  obeying 
injunction  no  defense;  insolvency  not  alone  sufficient.  Tlic 
remedy  by  interlocutory  injunction  being  preventive  in  its 
nature,  it  is  not  necessary  that  a  wrong  should  have  been 
actually  committed  before  a  court  of  equity  will  interfere, 
since  if  this  were  required  it  would  in  most  cases  defeat  the 
very  purpose  for  which  the  relief  is  sought  by  allowing  the 
commission  of  the  act  which  complainant  seeks  to  restrain. 
And  satisfactory  proof  that  defendants  threaten  the  commis- 
sion of  a  wrong  which  is  within  their  power  is  sufficient  ground 
to  justify  the  relief.'^''*  So  it  is  no  defense  by  way  of  demurrer 
to  the  bill  that  the  act  complained  of  has  not  been  done  where 
the  defendant  is  threatening  to  do  the  act  and  will  do  so 
unless  restrained  by  the  court.'^^  But  where  the  act  sought 
to  be  enjoined  is  an  official  one  imposed  upon  a  public  officer 
by  the  command  of  higher  authority  which  he  has  no  power 
to  question  or  dispute,  proof  that  he  has  threatened  to  do  the 
act  sought  to  be  restrained  w^ill  not  be  required.^^  And  where 
the  plaintiff's  rights  and  their  violation  by  the  defendant  are 
clear,  it  is  no  defense  to  an  application  for  an  injunction  that 
the  latter  may  find  it  a  matter  of  difficulty  to  keep  within  the 
terms  of  the  court's  order.^^     Upon  the  question  whether  the 

"2  Haring  v.  Kaiiffman,  2  Beas.,  should    be     denied,     yet    the    bill 

397.  should    be   retained   with   leave   to 

93  McArthur    v.    Kelley,   5     Ohio,  the    plaintiff    to   apply    for    an    in- 

139;   Kimberly  &  C.  Co.  v.  Hewitt,  junction  and  it  was  therefore  held 

75  Wis.,  371,   44  N.  W.,  303.       In  error  to  dismiss  the  bill. 

Real  Estate  T.  Co.  v.  Hatton,  194  »*  Union  M.  &  M.  Co.  v.  Warren, 

Pa.    St.,   449,   45    Atl.,   379,   it  was  82  Fed.,  522. 

held  that  where  the  defendant,  by  "^  Williams  v.  Boynton,  147  N.  Y, 

answer   and    in    open    court,    dis-  426,  42  N.  E.,  184. 

claims  any  Intention  of  doing  the  ^*'  Northern    Pacific    Ry.     Co.     v. 

acts    sought    to    be     enjoined,     al-  Cunningham,  103  Fed.,  708. 
though   a    preliminary     injunction 


26  INJUNCTIONS.  [chap.  I. 

mere  insolvency  of  the  defendant,  unaccompanied  by  any  other 
circumstances,  is  sufficient  to  justify  relief  by  injunction,  the 
authorities  are  conflicting.  Although  there  are  frequent  intima- 
tions by  the  courts  that  mere  insolvency  is  sufficient  ground  for 
equitable  interference,  yet  the  weight  of  the  actual  adjudica- 
tions upon  the  ciuestion  is  clearly  to  the  effect  that  the  mere  ina- 
bility of  the  defendant  to  respond  in  damages  at  law,  although 
it  may  properly  be  taken  into  consideration  upon  an  applica- 
tion for  the  extraordinary  aid  of  equity  by  injunction,  does  not 
of  itself  constitute  a  sufficient  foundation  for  the  relief.^^ 

§  19.  Disclosure  of  secrets  enjoined.  The  disclosure  of 
secrets  which  have  come  to  one's  knowledge  during  the  course 
of  a  confidential  employment  will  be  restrained  by  injunction. 
And  where  a  confidential  relationship  has  existed,  out  of  which 
one  of  the  parties  has  derived  information  or  secrets  con- 
cerning the  other,  equity  fastens  an  obligation  upon  his  con- 
science not  to  divulge  such  knowledge,  and  enforce^  the  obli- 
gation when  necessary  by  injunction.  Thus,  persons  who  in 
the  capacity  of  attorneys,  agents  or  in  other  confidential  rela- 
tions, have  obtained  the  custody  of  the  books  and  documents 
of  their  principals,  or  have  come  into  possession  of  secrets 
relating  to  their  affairs,  will  be  restrained  from  making  them 
public.^*     So  defendants  will  be  enjoined  from  disclosing  the 

07  Mechanics  Foundry  v.  Ryall,  v,  Webb,  117  N.  C,  478,  23  S.  E., 
75  Cal.,  601,  17  Pac,  703;  Centre-  458;  Harms  u.  Jacobs,  158  111.,  505, 
ville  &  Abington  T.  Co.  v.  Barnett,  41  N.  E.,  1071.  See,  post.  §  400  as 
2  Ind.,  536;  Heilman  v.  Union  C.  to  the  effect  of  the  insolvency  of 
Co.,  37  Pa.  St.,  100;  Parker  v.  Fur-  the  vendor  of  realty  upon  the  ven- 
long,  37  Ore.,  248,  62  Pac.  490;  dee's  right  to  restrain  the  collec- 
Moore  v.  Halliday,  (Ore.)  72  Pac,  tion  of  unpaid  purchase  money 
801;  Welk  v.  Dayton,  11  Nev„  161.  upon  a  failure  of  title. 
And  see  Miller  v.  Wills,  95  Va.,  os  Evitt  v.  Price,  1  Sim.,  483; 
337,  28  S.  E.,  337;  Raleigh  &  West-  Morison  v.  Moat,  9  Hare,  255; 
ern  Ry.  Co.  v.  G.  &  G.  M.  &  M.  Co.,  Prince  Albert  v.  Strange,  1  Mac.  & 
112  N.  C,  661,  17  S.  E.,  77.  Contra,  G.,  25;  Lewis  v.  Smith,  lb.,  417; 
Wilson  V.  Hill,  46  N.  J.  Eq.,  367,  Williams  v.  Prince  of  Wales,  23 
19  Atl.,  1097.  And  see,  also,  contra,  Beav.,  340;  Davies  v.  Clough,  8 
Taylor  v.  Russell,  119  N.  C,  30,  25  Sim.,  262;  Goodale  v.  Goodale,  16 
S.  E.,  710;   Morganton  L.  &  I.  Co.     Sim.,  316;  Salomon  v.  Hertz,  40  N. 


CHAP.  I.J 


GK.NEKAL    NATURE    OF    WRIT. 


27 


secrets  pertaining  to  plaintiff's  business  and  processes  of  manu- 
facturing goods,  defendants  having  acquired  such  knowledge 
while  in  plaintiff's  employ,  under  an  agreement  that,  in  consid- 
eration of  the  employment,  they  would  not  divulge  such 
secrets.^''  And  in  such  case  it  is  unnecessary  that  there  should 
be  an  express  covenant  upon  the  part  of  the  defendant  not  to 
disclose  the  secrets  of  plaintiff's  business  if  such  an  agree- 
ment may  fairly  be  implied  from  the  circumstances  of  the 
case  and  the  relation  of  the  parties.^  And  the  injunction  may 
properly  run  not  onlj^  against  the  employee  who  is  thus  vio- 
lating the  plaintiff's  rights  but  also  against  his  competitors 


J.  Eq.,  400,  2  Atl.,  379;  Yovatt  v. 
Winyard,  1  Jac.  &  W.,  394;  Merry- 
weather  V.  Moore,  (1892)  2  Ch., 
518;  Jarvis  v.  Peck,  10  Paige  Ch., 
118;  Peabody  v.  Norfolk,  98  Mass., 
452. 

99  Salomon  v.  Hertz,  40  N.  J.  Eq., 
400,  2  Atl.,  379;  TTium  Co.  v. 
Tloczynski,  114  Mich.,  149,  72  N. 
W.,  140,  38  L.  R.  A.,  200,  68  Am. 
St.  Rep.,  469;  Fralich  v.  Despar, 
165  Pa.  St.,  24,  30  Atl.,  521;  Stone 
V.  Goss,  65  N.  J.  Eq.,  756,  —  Atl., 
— ,  63  L.  R.  A.,  344. 

1  Westervelt  v.  National  Paper 
Co.,  154  Ind.,  673,  57  N.  E.,  552; 
Harrison  v.  Glucose  Sugar  R.  Co., 
53  C.  C.  A.,  484.  116  Fed.,  304,  58  L. 
R.  A.,  915;  Stone  v.  Goss,  65  N.  J. 
Eq.,756,  —  Atl.,  — ,  63  L.R.A.,  344; 
Eastman  Kodak  Co.  v.  Reichen- 
bach,  79  Hun,  183,  29  N.  Y.  Supp., 
1143;  Little  v.  Gallus,  4  App.  Div., 
569;  dictum  in  Thum  Co.  v.  Tloc- 
zynski, 114  Mich.,  149,  72  N.  W., 
140,  38  L.  R.  A.,  200,  68  Am.  St. 
Rep.,  469.  And  see  Silver  Spring 
B.  &  D.  Co.  V.  Woolworth,  16  R.  I. 
729,  19  Atl.,  528.  In  Westervelt  v. 
National  Paper  Co.,  154  Ind.,  673, 


57  N.  E.,  552,  supra.  Monks,  J., 
makes  use  of  the  following  lan- 
guage: "It  is  evident  from  the 
authorities  cited  that  if  a  person 
employs  another  to  work  for  him 
in  a  business  in  which  he  makes 
use  of  a  secret  process,  or  of 
machinery  invented  by  himself,  or 
by  others  for  him,  but  the  nature 
and  particulars  of  which  he  de- 
sires to  keep  a  secret,  and  of 
which  desire  on  the  part  of  tho 
employer  the  employe  has  notice 
at  the  time  of  his  employment, 
even  if  there  is  no  express  contract 
on  the  part  of  the  employe  not  to 
divulge  said  secret  process  or 
machinery,  the  law  will  imply  a 
promise  to  keep  the  employer's  se- 
cret thus  entrusted  to  him;  and 
any  attempt  on  his  part  to  use  the 
secret  process  or  machinery,  or  to 
construct  the  machinery  for  his 
own  use  as  against  the  master,  or 
to  communicate  said  secret  to  oth- 
ers, or  in  any  manner  to  aid  oth- 
ers in  using  the  same,  or  in  con 
structing  the  machinery,  will  not 
only  be  a  breach  of  his  contract 
with   his   employer,   but  a  breach 


28  INJUNCTIONS.  [chap,  l, 

who  have  wrongfully  induced  the  employee  to  disclose  to 
them  the  secrets  of  the  business,  restraining  them  from  making 
use  of  such  information.-  And  where  defendant  has  thus 
put  himself  in  the  wrong  by  procuring  from  plaintiff's 
employee  a  disclosure  of  trade  secrets,  it  is  no  defense  to  the 
application  for  the  injunction  that  the  defendant  himself,  by 
his  own  independent  investigation,  would  in  all  probability 
have  discovered  the  secret  process  in  question.^  Nor  is  the 
necessary  disclosure  of  the  secrets  of  plaintiff's  business  during 
the  course  of  the  trial  such  a  publication  as  will  prevent  him 
from  obtaining  the  desired  relief.^  And  where  plaintiff  is 
engaged  in  the  business  of  procuring  early  data  and  informa- 
tion in  regard  to  the  erection  of  public  buildings  and  other 
public  works  which  it  furnishes  to  its  customers  under  an 
agreement  upon  their  part  to  keep  it  secret,  an  injunction 
will  lie  to  restrain  the  customers  from  divulging  the  infor- 
mation thus  obtained,  contrary  to  the  agreement.'^  The  rule, 
however,  does  not  extend  to  cases  where  a  fraudulent  tran- 
saction has  come  to  the  knowledge  of  the  person  occupying  the 
confidential  relation,  since  equity  can  extend  no  protection 
to  iniquitous  secrets."  Nor  will  the  relief  be  granted  where  it 
appears  that  long  before  the  filing  of  his  bill,  the  plaintiff  has 
sold  out  and  ceased  doing  business,  since  no  injury  could  result 
to  him  in  such  a  case.'^ 

of  confidence  and  violation  of  duty  enough  copies  of  the  secret  testi- 
which  will  be  enjoined  by  a  court  mony  to  supply  the  members  of  the 
of  equity."  court.      Nor    is     the     plaintiff    re- 

:;  Westervelt  v.  National  Paper  quired  to  set  forth  his  secret  proc- 
Co.,  154  Ind.,  673,  57  N.  E.,  552;  esses  in  the  bill.  Adams  v.  Knapp, 
Stone   V.   Goss,   65   N.   J.   Eq.,   756,     121  Fed.,  34,  40. 

—  Atl.,  — ,  63  L.  R.  A.,  344.  •'  Dodge    Co.    v.     C.    I.     Co.,     183 
;-■  Stone  V.  Goss,  65  N.  J.  Eq.,  756,     M^ss.,  62,  66  N.  E.,  204.  60  L.  R.  A., 

—  Atl.,  —    63  L.  R.  A.,  344.  810. 

*  Stone  V.  Goss,  65  N.  J.  Eq.,  756,        "  Gartside  v.   Outram,  3  Jur.  N. 

—  Atl.,  — ,  63  L.  R.  A.,  344.     See     S.,  40. 

this  case  to  the  effect  that  in  such         '  Shonk     Tin     Printing   Co.     v. 
case  it  is  proper  to  have  the  hear-     Shonk,  138  111.,  34,  27  N.  E.,  529. 
ing  in   private  and    to    have  only 


CHAr.  l.J 


GENERAL  NATURE  OF  WRIT. 


29 


§  20.  Criminal  acts  not  enjoined.  The  subject-matter  of 
the  jurisdiction  of  equity  being  the  protection  of  private 
property  and  of  civil  rights,  courts  of  equity  will  not  inter- 
fere for  the  punishment  or  prevention  of  merely  criminal  or 
immoral  acts,  unconnected  with  violations  of  private  right. 
Equity  has  no  jurisdiction  to  restrain  the  commission  of  crimes, 
or  to  enforce  moraJ  obligations  and  the  performance  of  moral 
duties;  nor  will  it  interfere  for  the  prevention  of  an  illegal 
act  merely  because  it  is  illegal.  And  in  the  absence  of  any 
injury  to  property  rights  it  wall  not  lend  its  aid  by  injunction 
to  restrain  the  violation  of  public  or  penal  statutes,  or  the 
commission  of  immoral  and  illegal  acts.^  Thus,  the  relief  has 
been  refused  to  prevent  persons  from  carrying  on  the  business 
of  banking  in  violation  of  a  Svtatute  restraining  unincorporated 
banking  associations."     So  where    it    was    sought    to    enjoin 


sAttorney-General  v.  Utica  In- 
surance Co.,  2  Johns.  Ch.,  371; 
Sparhawk  v.  Union  P.  R.  Co.,  54 
Pa.  St.,  401;  Babcock  v.  New  Jer- 
sey S.  Y.  Co.,  5  C.  E.  Green,  296; 
Emperor  of  Austria  v.  Day,  3  De  G., 
F.  &  J.,  217;  Cope  v.  District  Fair 
Association,  99  111.,  489;  Portis 
V.  Fall,  34  Ark.,  375;  Medical  & 
Surgical  Institute  v.  City  of  Hot 
Springs,  34  Ark.,  559;  State  v. 
Schweickardt,  109  Mo.,  496.  19  S. 
W.,  47;  Worthington  v.  Waring, 
157  Mass.,  421,  32  N.  E.,  744,  20  L. 
R.  A.,  342;  State  v.  Capital  City 
Dairy  Co.,  62  Ohio  St.,  123,  56  N. 
E.,  651;  State  v.  O'Leary,  155  Ind., 
526,  58  N.  E.,  703,  52  L.  R.  A., 
299;  People  v.  District  Court.  26 
Col.  386.  58  Pac,  604.  46  L.  R.  A., 
850;  O'Brien  v.  Harris,  105  Ga.,  732, 
31  S.  E.,  745;  Ocean  City  Assn.  v. 
Schurch,  57  N.  J.  Eq.,  268,  41  Atl., 
914;  Tiede  v.  Schneidt,  99  Wis.. 
201,   74    N.    W.,   798;    McGinnis   v. 


Friedman,   2   Idaho,  393,    17    Pac. 
635. 

9  Attorney-General  r.  Utica  In- 
surance Co.,  2  Johns.  Ch.,  371.  The 
information  filed  in  this  case  by  the 
Attorney-General,  ex  officio,  sought 
to  restrain  the  defendant,  a  com- 
pany incorporated  for  transacting 
the  busines  of  fire  and  marine  in- 
surance, from  engaging  in  banking 
operations  without  authority  in  its 
act  of  incorporation,  and  in  direct 
violation  of  a  public  statute  pro- 
hibiting unincorporated  banking 
associations.  Kent,  chancellor, 
after  suggesting  that  the  ques- 
tion involved  was  purely  a  legal 
question,  the  charge  partaking  of 
the  nature  of  a  criminal  offense, 
observes  as  follows:  "If  a  charge 
be  of  a  criminal  nature,  or  an  of- 
fense against  the  public,  and  does 
not  touch  the  enjoyment  of  prop- 
erty, it  ought  not  to  be  brought 
within    the   direct   jurisdiction   of 


30 


INJUNCTIONS. 


[chap.  I. 


defendants  from  running  their  street  cars  on  Sunday,  in  viola- 
tion of  a  statute  making  it  a  penal  offense,  the  relief  was 
refused,  although  the  action  was  brought  by  pewholders  and 


this  court,  which  was  intended  to 
deal  only  in  matters  of  civil  right 
resting  in  equity,  or  where  the 
remedy  at  law  was  not  sufficiently 
adequate.  Nor  ought  the  process 
of  injunction  to  be  applied  but 
with  the  utmost  caution.  It  is  the 
strong  arm  of  the  court;  and  to 
render  its  operation  benign  and 
useful  it  must  be  exercised  with 
great  discretion,  and  when  neces- 
sity requires  it.  Assuming  the 
charges  in  the  information  to  be- 
true,  it  does  not  appear  to  me  that 
the  banking  power,  in  this  case, 
produces  such  imminent  and  great 
mischief  to  the  community  as  to 
call  for  this  summary  remedy. 
The  English  Court  of  Chancery 
rarely  uses  this  process,  except 
when  the  right  is  first  established 
at  law,  or  the  exigency  of  the  case 
renders  it  indispensable.  Thus,  in 
Brown's  case,  in  2  Vesey,  414,  a 
motion  was  made  for  an  injunc- 
tion to  stay  the  use  of  a  market, 
and  Lord  Hardwicke  said  it  was  a 
most  extraordinary  attempt,  and 
that  the  plaintiff  had  several  rem- 
edies which  he  might  use.  He 
said  it  would  cause  great  confu- 
sion to  bring  into  contempt,  upon 
the  injunction,  all  persons  who 
might  use  the  market;  and  that  if 
the  court  ought  to  interpose  at  all, 
it  would  be  after  the  title  was  es- 
tablished at  law.  So  he  observed 
in  another  case  (Amb.,  209,  Anon.) 
that  the  court  granted  an  injunc- 
tion to  stay  the  working  of  a  col- 
liery   with    great  reluctance,    and 


will  not  do  it  except  where  there 
is  a  breach  of  an  express  covenant 
or  an  uncontroverted  mischief.  In 
a  late  case  before  Lord  Eldon  (At- 
torney-General V.  Nichol,  16  Vesey, 
338),  on  an  information  filed  to  re- 
strain the  defendant  from  obstruct- 
ing the  ancient  lights  of  a  hospital, 
he  stated  that  the  foundation  of 
this  jurisdiction  by  injunction 
was  that  head  of  mischief,  or 
those  mischievous  consequences, 
which  required  a  power  to  prevent 
as  well  as  to  remedy,  and  that 
there  might  be  nuisances  which 
would  support  an  action  but 
which  would  not  support  an  in- 
junction. If  the  defendants  are 
carying  on  banking  operations 
contrary  to  law  they  ought  un- 
doubtedly to  be  restrained;  but  I 
can  not  be  of  opinion  that  the  oper- 
ation is  such  a  mischief  or  public 
nuisance  as  to  require  the  imme- 
diate and  extraordinary  process  of 
this  court  to  abate  it.  I  know  that 
the  court  is  in  the  practice  of  re- 
straining private  nuisances  to 
property,  and  of  quieting  persons 
in  the  enjoyment  of  private  right; 
but  it  is  an  extremely  rare  case, 
and  may  be  considered,  if  it  ever 
happened,  as  an  anomaly  for  a 
court  of  equity  to  interfere  at  all, 
and  much  less  preliminarily,  by 
injunction,  to  put  down  a  public 
nuisance  which  did  not  violate  the 
rights  of  property,  but  only  con- 
travened the  general  policy.  .  . 
.  The  plain  state  of  the  case,  then. 
is    that   an    information     is     here 


CHAP.  I.] 


GENERAL  NATURE  OF  WRIT. 


31 


property  owners  on  the  line  of  defendants'  track.  In  all 
such  eases  ample  remedy  may  be  had  by  proceedings  at  law, 
and,  the  offense  being  damnum  absque  injuria,  courts  of  equity 
will  not  interfere.io     So  equity  will  not  enjoin  the  mainte- 


filed  by  the  Attorney-General  to 
redress  and  restrain,  by  injunction, 
the  usurpation  of  a  franchise, 
which,  if  true,  amounts  to  a  breach 
of  law  and  of  public  policy.  I  may 
venture  to  say  that  such  a  prose- 
cution is  without  precedent  in  this 
court,  but  it  is  supported  by  a 
thousand  precedents  in  the  courts 
of  law.  How,  then,  can  I  hesitate 
on  the  question  of  jurisdiction? 
The  whole  question,  upon  the  mer- 
its, is  one  of  law  and  not  of 
equity.  The  charge  is  too  much 
of  the  nature  of  a  misdemeanor  to 
belong  to  this  court.  The  process 
of  injunction  is  too  peremptory  and 
powerful  in  its  effects  to  be  used 
in  such  a  case  as  this  without  the 
clearest  sanction.  I  shall  better 
consult  the  stability  and  utility  of 
the  powers  of  this  court  by  not 
stretching  them  beyond  the  limits 
prescribed   by   the   precedents." 

10  Sparhawk  v.  Union  P.  R.  Co., 
54  Pa.  St.,  401.  This  was  a  bill 
filed  by  pewholders  in  churches 
and  owners  of  dwelling  houses 
along  the  line  of  defendants'  street 
railway  to  restrain  the  running  of 
cars  on  Sunday.  The  bill  charged 
that  by  reason  of  defendants  run- 
ning their  cars  on  Sunday  com- 
plainants "have  been,  and  are  and 
will  be,  deprived  of  their  right  of 
enjoying  the  Sabbath  as  a  day  of 
rest  and  religious  exercise,  free  of 
all  disturbance  from  merely  un- 
necessary and  unauthorized  world- 


ly employment;  that  they  have 
been,  are  and  will  be  thereby  de- 
prived from  enjoying  peaceably 
and  without  interruption  the  wor- 
ship of  Almighty  God  in  their  ac- 
customed places  of  public  worship 
or  in  their  own  residences  on  the 
Sabbath  day;  and  that  the  lawful 
peace  of  the  said  day  is  thereby 
disturbed  and  broken,  and  the 
rights  of  property  which  they  pos- 
sess in  their  said  churches  or 
places  of  public  worship,  and  in 
their  private  residences,  are  and 
will  continue  to  be  thereby  in- 
fringed upon,  and  their  said 
churches  and  residences  deteri- 
orated in  value."  The  injunction 
was  denied,  Thompson,  J.,  saying: 
"It  seems  to  me  that  this  is  clearly 
but  a  charge  of  the  violation  of  the 
provisions  of  the  act  of  assembly 
of  1794  which  interdicts  worldly 
employment  on  the  Sabbath  day, 
and  that  it  describes  nothing  but 
the  consequences  which  are  in- 
tended to  be  prevented  by  that  act. 
If  this  be  so,  then  it  is  not  a  case 
of  special  injury,  but  only  that 
which  results  from  a  public  offense 
or  wrong  to  all  and  every  one  in 
the  community  alike  where  the  act 
is  committed.  It  is  not  possible,  I 
think,  to  discover  the  connection 
between  the  cause  of  complaint 
and  a  private  injury,  excepting  in 
and  through  the  act  as  prohibited 
by  the  statute.  And  if  we  are  to 
regard  it  as  a  common  law  offense 


32 


INJUNCTIONS. 


[chap.  I. 


nance  of  a  gambling  house/ ^  or  of  a  race  track  and  pool 
room,^2  such  acts  being  punishable  under  the  criminal  laws 
of  the  state.  Nor  will  an  injunction  issue  to  restrain  the  sale 
of  spirituous  liquors  in  violation  of  the  criminal  laws.^^  Nor 
Avill  a  mandatory  injunction  be  granted  to  compel  obedience 
to  the  penal  laws  of  the  state.^^  And  in  accordance  with  the 
well  settled  doctrine  that  equity  will  not  interfere  with  the 
administration  of  the  criminal  laws  of  the  state,  an  injunction 
will  not  be  granted  against  the  enforcement  of  executions  for 


ihe  charge  in  the  bill  does  no  more 
than  describe  the  fruits  of  the  of- 
fense. Rest  and  quiet  on  the  Sab- 
bath day,  with  the  right  and  privi- 
lege of  public  and  private  worship 
undisturbed  by  any  mere  worldly 
employment,  are  exactly  what  the 
statute  was  passed  to  protect.  10 
Casey,  398.  The  deprivation  of 
these  privileges  is  the  sum  of  the 
complaint,  and  this  bill  is  essen- 
tially, therefore,  a  bill  to  enforce 
by  injunction  a  penal  statute.  That 
is  not  our  province,  especially  at 
the  suit  of  a  private  party."  In 
Wisconsin,  however,  it  is  held  that 
the  Supreme  Court  of  the  state,  in 
the  exercise  of  its  original  juris- 
diction under  the  constitution,  may 
entertain  an  information  by  the 
Attorney-General  to  restrain  corpo- 
rations from  an  excess  or  abuse  of 
their  corporate  franchises,  or  from 
a  violation  of  a  public  law  to  the 
detriment  or  injury  of  the  public. 
The  court  may,  therefore,  enter- 
tain an  information  against  a  rail- 
way to  enjoin  it  from  violating  a 
law  of  the  state  regulating  the 
rates  to  be  charged  by  railways  for 
the  carriage  of  freight  and  passen- 
gers, and  to  enforce  by  injunction 
obedience  to   the  statute,  notwith- 


standing the  statue  provides  pen- 
alties against  the  agents  of  the  cor- 
poration for  its  violation.  And  the 
right  to  relief  by  injunction  is  up- 
held in  such  case,  although  there 
may  be  an  adequate  remedy  at  law 
by  proceedings  in  quo  warranto. 
But  the  Attorney-General  will  be 
compelled  to  elect  which  remedy 
he  will  pursue,  and  if  proceedings 
are  already  pending  in  quo  war- 
ranto the  court  will  require  the 
dismissal  of  such  proceedings  as 
a  condition  to  granting  relief  by 
injunction.  Attorney-General  v. 
The  Railroad  Companies,  35  Wis., 
425.  The  case  is  believed  to  con- 
stitute the  only  precedent  for  the 
interference  of  equity  to  enforce 
by  injunction  obedience  to  a  penal 
statute,  and  it  certainly  extends 
the  jurisdiction  by  injunction  to  a 
point  unsustained  either  by  princi- 
ple or  upon  authority. 

11  People  V.  District  Court,  26 
Col.,  386,  58  Pac,  604,  46  L.  R.  A.. 
850. 

12  State  V.  O'Leary,  155  Ind.,  526, 
58  N.  E.,  703,  52  L.  R.  A.,  299. 

!•■' O'Brien  v.  Harris,  105  Ga., 
732,  31  S.  E..  745. 

1 '  State  V.  Capital  City  Dairy  Co., 
62  Ohio  St.,  123.  56  N.  E.,  651. 


CHAP.  I.  I  GENERAL    NATUKE    OF    WIUT.  33 

costs  issued  against  an  unsuccessful  party  to  a  criminal  prose- 
cution.^^ Nor  will  a  court  of  equity  enjoin  a  judgment  imposed 
for  violating  a  law  of  the  state.^''  Nor  will  it  enjoin  suits  or 
prosecutions  of  a  criminal  nature.^" 

§  20  a.   When  relief  granted  though  acts  are  criminal.     It 

must  constantly  be  borne  in  mind,  however,  that  the  rule  for- 
bidding interference  by  equity  to  restrain  the  commission  of 
crimes  is  limited  strictly  to  cases  where  the  acts  sought  to  be 
enjoined  are  unaccompanied  by  any  injury  to  property  rights 
and  where  the  granting  of  the  relief  would,  therefore,  be,  in 
effect,  the  enforcement  by  courts  of  equity  of  the  penal  laws 
of  the  state.  And  where  the  acts  against  which  the  relief  is 
prayed  are  such  as  to  cause  irreparable  damage  to  property  or 
property  rights,  or  the  case  is  one  which  for  any  other  reason 
calls  for  the  interposition  of  equity  according  to  established 
principles,  the  mere  fact  that  such  acts  are  also  criminal  in 
their  nature  and  punishable  under  the  penal  laws  of  the  state 
constitutes^  no  valid  defense  to  the  interference  of  the  court  by 
injunction.  In  such  case  property  rights  are  being  violated 
and  it  is  for  their  protection  that  it  is  the  duty  of  the  court 
to  interfere  and  the  wrong-doer  will  not  be  permitted  to 
shield  himself  from  the  strong  arm  of  equity  by  pleading  the 
criminal  nature  of  the  wrongs  in  which  he  is  engaged.^^ 

15  Gault  V.  Wallis,  53  Ga.,   67.5.  v.  Pennsylvania  Co.,  54  Fed.,  730, 

16  Joseph  V.  Burk,  46  Ind.,  59.  19  L.  R.  A.,  387;   United  States  v. 

17  Moses  V.  Mayor  of  Mobile,  52  Elliott,  64  Fed.,  27;  Consolidated 
Ala.,  198;  Washington  &  G.  R.  Co.  S.  &  W.  Co.  v.  Murray,  80  Fed.,  811; 
V.  District  of  Columbia,  6  Mackey,  Nashville,  C.  &  St.  L.  Co.  v.  Mc- 
570;  Poyer  v.  Village  of  Des  Connell,  82  Fed.,  65;  Union  Pacific 
Plaines,  123  111.,  Ill,  13  N.  E.,  819.  R.  Co.  v.  Ruef,  120  Fed.,  102;  Jones 

18 /n  re  Debs,  158  U.  S.,  564,  15  v.  Oemler,  110  Ga.,  202,  221,  35  S. 

Sup.  Ct.  Rep.,  900;  Hamilton-Brown  E.,  375;   Peoples  Gas  Co.  v.  Tyner, 

S.  Co.  V.  Saxey,  131  Mo.,  212.  32  S.  131   Ind.,   277,   31    N.   E.   59,    16   L. 

W.,   1106,   52    Am.    St.    Rep..    622:'  R.   A.,   443,   31   Am.   St.   Rep.,   433; 

Coeur  D'Alene  C.  M.  Co.  v.  Miners'  Columbian  Athletic  Club  v.  State, 

Union,    51    Fed.,    260,   19   U   R.   A.,  143   Ind..  98,  40  N.  E.,  914,  52  Am. 

382;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  St.    Rep.,    407;    Cumberland    Glass 
3 


34  INJUNCTIONS.  [chap.  I. 

§20  I.  No  relief  against  injury  to  one's  feelings;  nor  for 
protection  of  "right  of  privacy,"  or  of  political  rights.  Courts 
of  equity  being  concerned,  as  already  pointed  out,  only  with 
property  and  property  rights,  they  will  not  interfere  by  injunc- 
tion to  restrain  wrongs  which  result  only  in  injury  to  one's 
feelings  or  to  prevent  the  violation  of  rights  which  are  of  a 
purely  personal  nature  and  which  have  no  connection  or 
association  with  property  interests.  And  whether  or  not  there 
exists  in  our  jurisprudence  a  so-called  "right  of  privacy,"  the 
violation  of  which  would  be  actionable  in  a  court  of  law  or 
might  be  made  the  basis  for  prosecutions  of  a  criminal  nature, 
as  to  which  the  authorities  are  somewhat  in  conflict,  certain  it 
is  that  no  such  right  exists  as  a  sufficient  basis  for  the  interpo- 
sition of  a  court  of  equity  by  the  extraordinary  remedy  of 
injunction.^ ^  An  injunction  will  therefore  not  lie  to  restrain 
the  publication  of  a  biographical  sketch  of  a  deceased  member 
of  plaintiff's  family.^^  So  equity  will  not  enjoin  the  distribu- 
tion of  lithographic  prints  and  likenesses  of  plaintiff  in  con- 
nection with  advertisements  of  defendant's  business.-^     So  the 

Mfg.  Co.  V.  G.  B.  B.  Assn.,  59  N.  J.  liss  v.  Walker  Co.,  57  Fed.,  434, 
Eq.,  49,  46  Atl.,  208;  Vegelahn  v.  31  L.  R.  A.,  283.  And  see  Schuy- 
Gunther,  167  Mass.,  92,  44  N.  E.,  ler  v.  Curtis,  147  N.  Y.,  434,  42  N. 
1077,  57  Am.  St.  Rep.,  443;  Beck  B.,  22,  31  L.  R.  A.,  286,  49  Am.  St. 
V.  Railway  Teamsters  Union,  118  Rep.,  671.  In  Corliss  v.  Walker, 
Mich.,  497,  77  N.  W.,  13,  42  L.  R.  64  Fed.,  280,  31  L.  R.  A.,  283,  the 
A.,  407,  74  Am.  St.  Rep.,  421;  Ha-  court  make  the  distinction,  as  to 
warden  v.  Y.  &  L.  C.  Co.,  Ill  Wis.,  the  existence  of  the  right  of  pri- 
545,  87  N.  W.,  472,  55  L.  R.  A.,  vacy,  between  private  and  public 
828;  Cranford  v.  Tyrrell,  128  N.  Y.,  characters.  This  distinction  has 
341,  28  N.  E.,  514;  North  Bloom-  been  severely  and,  it  seems,  just- 
field  G.  M.  Co.  V.  United  States,  32  ly  criticised.  See  Atkinson  v.  Do- 
C.  C.  A.,  84,  88  Fed.,  664;  Port  of  herty  and  Roberson  v.  Rochester 
Mo])ile  V.  Louisville  &  N.  R.  Co.,  F.  B.  Co.,  supra. 
84  Ala.,  115,  4  So.,  106.  ^<)  Corliss  v.  Walker  Co.,  57  Fed., 

'"Roberson    v.    Rochester   F.    B.  434,  31  I..  R.  A.,  283. 

Co.,  171    N.  Y.,  538,  64  N.  E.,  442,  '-ii  Roberson    v.    Rochester   F.    B. 

59  L.  R.  A.,  478,   89  Am.  St.  Rep.,  Co.,  171   N.  Y.,  538,  64  N.  E.,  442, 

828;      Atkinson     v.     Doherty,     121  59  L.  R.  A.,  478,  89  Am.  St.  Rep., 

Mich.,  372.   80  N.  W.,  285.  4r;  L.  t?,.  S"8. 
A..  219,  80  Am.  St.  Rep.,  507;   Cor- 


CilAP.  I.]  GENERAL    NATURE    OF    WEIT.  35 

widow  of  a  deceased  husband  can  not  restrain  the  use  of  his 
name  and  picture  upon  the  wrapper  of  a  brand  of  cigars  manu- 
factured and  sold  by  the  defendant.^^  Where,  however,  the 
publication  of  plaintiff's  photograph  would  involve  a  breach  of 
confidence  and  of  a  contractual  relation,  express  or  implied, 
equity,  having  undoubted  jurisdiction  to  protect  contract 
rights,  may  properly  interfere  to  restrain  such  publication.^^ 
And  upon  the  same  principle  that  courts  of  equity  are  con- 
cerned only  with  the  protection  of  j:)roperty  rights,  they  will 
not  interpose  the  aid  of  injunction  for  the  protection  of  rights 
which  ai'e  of  a  purely  political  nature.-^  And  where  the  sole 
question  at  issue  is  as  to  the  right  of  a  subordinate  branch  of 
a  benevolent  organization  to  be  represented  in  the  central 
body,  equity  will  not  lend  its  aid  since  no  right  of  property 
is  involved. 2^ 

§  21.  Fraud  as  ground  for  relief.  Courts  of  equity  in  the 
exercise  of  their  general  jurisdiction  for  the  prevention  of 
fraud  are  often  called  upon  to  interfere  by  injunction  where 
fraud  constitutes  the  gravamen  of  the  bill.  The  manifestations 
of  fraud  are  so  various  that  it  is  impossible  to  embrace  all  its 
varieties  of  form  within  the  limits  of  a  precise  definition. 
Indeed  the  courts  have  generally  avoided  all  attempts  in  this 
direction,  and  have  reserved  to  themselves  the  liberty  to  deal 
with  it  in  whatever  aspect  it  may  be  presented  by  human 
ingenuity.  The  most  frequent  instances  in  which  injunctions 
are  granted  upon  the  ground  of  fraud  are  in  cases  where  relief 
is  sought  against  proceedings  at  law,  and  to  the  chapters  upon 
that  subject  the  reader  is  referred  for  the  principles  which  gov- 

22  Atkinson  v.  Doherty,  121  24  Fletcher  v.  Tuttle,  151  111., 
Mich.,  372,  80  N.  W.,  285,  46  L.  R.  41,  37  N.  E.,  683,  25  L.  R.  A.,  143. 
A.,  219,  80  Am.  St.  Rep.,  507.  And  see,  post,  §  1312. 

23  Pollard  V.  Photographic  Co ,  25  Wellenvoss  v.  Grand  Lodge, 
58  L.  J.  N.  S.  Ch.,  251;  Corliss  v.  103  Ky.,  415,  45  S.  W.,  360,  40  L. 
Walker  Co.,  57  Fed.,  434,  31  L.  R.  R.  A.  488.  In  Worlds  Columbian 
A.,  283.  Exposition  v.   United   States,   6  C. 


s  ^^.    Irreparable    injury    must   be    clearly   sbown.     An 


36  INJUNCTIONS.  •  [chap.  I. 

em  the  interference  of  equity  in  such  cases.-^  Where  fraud  is 
relied  upon  as  the  foundation  for  an  injunction,  the  allegations 
in  the  bill  must  be  of  specific  and  definite  acts  of  fraud,  and 
not  mere  general  averments ;  and  in  the  absence  of  such  spe- 
cific allegations  a  court  of  equity  will  not  interfere,  although 
irreparable  injury  is  alleged.-"  Upon  the  other  hand,  it  is 
unnecessary  that  fraud  should  be  alleged  in  the  pleadings  in 
express  terms  if  facts  are  averred  from  which  it  follows  as  a 
conclusion  of  law.-* 

§  22 

injunction,  being  the  "strong  arm  of  equity,"  shouki  never  be 
granted  except  in  a  clear  case  of  irreparable  injury,  and  with 
a  full  conviction  on  the  part  of  the  court  of  its  urgent  neces- 
sity.29  But  by  irreparable  injury  it  is  not  meant  that  the 
injury  is  beyond  the  possibility  of  repair  by  money  compensa- 
tion but  it  must  be  of  such  a  nature  that  no  fair  and  reason- 
able redress  may  be  had  in  a  court  of  law  and  that  to  refuse 
the  injunction  would  be  a  denial  of  justice.^*^     To  justify  the 

C.  A.,  58,  56  Fed.,  654    it  was  held  consequent     injury     to     plaintiff's 

that   the   United    States   could   not  property   located   near  the  seat  of 

enjoin  the  managers  of  what    was  war,    the   issues    involved    in   such 

known    as    the     Chicago    Worlds  case  being  purely  political  ones. 

Fair   from  opening  the  exposition  -«  See  chapters  II  and  III,  post. 

and  grounds  to  the  public  on  Sun-  :^' Powell  v.  Parker,  38  Ga.,  644; 

days   contrary   to  the    act  of   con-  Dickenson  v.  B.  L.  &  I.  Co.,  93  Va., 

gress  appropriating  certain  money  498,  25  S.  B.,  548.     And  see  Brick 

to   aid    in   the  construction  of  the  v.  Burr,  47  N.  J.  Eq.,  189,  19  Atl., 

exposition  since   the   case   did  not  842. 

involve   any   such   property   rights  -'<  Avery  r.  Job,  25  Ore.,  512,  36 

as  were  entitled  to  the  protection  Pac,      293;      Andrews      i\      King 

of    a    court     of     equity.      And     in  County,  1   Wash.,  46,   23  Pac,  409. 

Pearson  v.  Pearson,  108  Fed.,  461,  22  Am.  St.   Rep.,  136. 

it   was  held   that  the  agents  of  a  -'•>  Potter  r.  Schenck,  1  Biss.,  515; 

foreign  government  which  was  at  Citizens      Coach     Co.    v.    Camden 

war    with     another    could    not   be  Horse     R.    Co.,     29     N.    .1.    Eq.    (2 

enjoined  from  exporting  munitions  Stew.),  299. 

of  war  to   their  own   government  ■"  Chicago    General     Ry.    Co.    v.. 

in  alleged  violation  of  the  princi-  C,  B.  &  Q.  R.  Co.,  181  III.,  605,  54 

pies  of  international   law,  thereby  N.    E.,   1026. 
prolonging   the    war    and     causing 


CHAP.  l.J  GEMEKAL  NATURE  OF  WRIT.  37 

court  in  granting  the  relief  it  nnist  be  reasonably  satisfied  that 
there  is  an  actual  intention  on  the  part  of  defendant  to  do  the 
act  which  it  is  sought  to  enjoin,  or  that  there  is  probable 
ground  for  believing  that,  unless  the  relief  is  granted,  the 
act  will  be  done.  And  it  is  not  a  sufficient  ground  for  inter- 
fering that,  if  there  be  no  such  intention  on  the  part  of  de- 
fendant, the  injunction  can  do  no  harm.^^  Nor  will  the  court 
interfere  when  the  evidence  shows  that  there  is  no  probability 
of  defendant  doing  the  act  which  it  is  sought  to  restrain.-^-  So  if 
it  is  apparent  upon  an  application  for  an  injunction  that  the 
relief  sought  is  disproportioned  to  the  nature  and  extent  of  the 
injury  sustained  or  likely  to  be  sustained,  the  court  will  decline 
to  interfere.^^  Nor  will  the  relief  be  granted  to  prevent  the 
commission  of  acts  which,  although  unauthorized,  yet  produce 
no  results  injurious  to  plaintif¥.-'^'*  So  the  relief  will  not  be 
granted  unless  the  injurj^  to  the  plaintift*  is  threatened  or 
imminent  or  is  in  all  probability  about  to  be  inflicted,  and  the 
writ  will  not  issue  merely  to  allow  the  fears  or  apprehension 
of  the  plaintift"  where  there  is  no  showing  or  reasonable  ground 
for  believing  that  the  defendant  is  about  to  commit  the  w^rongs 
complained  of  or  where  it  appears  that  he  is  without  the  oppor- 
tunity or  intention  of  so  doing.^''  And  an  interlocutory 
injunction  will  not  be  allowed  where  the  right  wdiich  plaintiff 
seeks  to  have  protected  is  in  doubt  or  where  the  injury  which 
wall  result  from  the  invasion  of  that  right  is  not  irreparable.^^ 
And  upon  an  interlocutory  application  for  an  injunction  and 
a  receiver  to  take  possession  of  property  pendente  lite,  plaintift' 

■ii  Dunn   V.   Bryan,   I.  R.   7   Eq.,  "i^  McLaughlin    v.    Sandusky,  17 

143.  Neb.,  110,   22  N.  W.,  241. 

'■'■-  Lord   Cowley   v.  Byas,    5    Ch.  ^•"'  Lester  Real  Estate  Co.  v.  City 

n.,  944.  of  St.  Louis,  169  Mo.,  227,  69  S.  W., 

:■•■'•  Hall    r.    Rood,    40    Mich.,    46;  300;     Reynolds  v.  Everett,  144   N. 

Lynch    v.    Union     Institution,    159  Y.,  189,  39  N.  E.,  72. 

Mass..  306,  34  N.  E..  364,  20  L.  R.  :<«  Hagerty  v.  Lee,  45  N.  J.  Eq., 

A.,  842:     Amerman  v.  Deane,    132  255,    17    Atl.,    826;     Amos   v.    Nor- 

N.  Y.,   355,  30  N.   E.,   741,   28   Am.  cross.    58    N.    .1.    Eq.,    256,    43   AtL, 

St.  Rep.,  584.  195. 


174847 


38  INJUNCTIONS.  [chap.  I. 

must  not  only  show  a  case  of  adverse  and  conflicting  claims  to 
the  property  and  one  of  equitable  cognizance,  but  he  must  also 
show  some  emergency  or  danger  of  loss  requiring  immediate 
action ;  and  the  danger  must  be  clear  and  the  right  of  plaintiff 
free  from  reasonable  doubt  to  warrant  the  interposition  of 
the  court.^" 

§  23.  Injunction  not  corrective  of  past  injuries.  The 
appropriate  function  of  the  writ  of  injunction  is  to  afford  pre- 
ventive relief  only,  and  not  to  correct  injuries  which  have 
already  been  committed,  or  to  restore  parties  to  rights  of 
which  they  have  already  been  deprived.  It  is  not,  therefore, 
an  appropriate  remedy  to  procure  relief  for  past  injuries,  and 
it  is  only  to  be  used  for  the  prevention  of  a  future  injury 
actually  threatened,  and  to  prevent  the  perpetration  of  a 
legal  wrong  for  which  no  adequate  remedy  can  be  had  in 
damages.  And  if  the  act  sought  to  be  enjoined  has  already 
been  committed,  equity  will  not  interfere,  since  the  granting 
of  an  injunction  under  such  circumstances  would  be  a  useless 
act.^^  But  where  the  act  sought  to  be  enjoined  is  only  par- 
tially completed,  an  injunction  will  lie  to  restrain  the  com- 
pletion of  the  threatened  injury.3f>  And  where  suit  is  begun 
before  the  doing  of  the  wrongful  act  and  during  the  pendency 

37  Beecher  V.  Bininger,  7  Blatch.,  v.   Davis,   22    Fla.,   405;     Ewing   v. 

170.  Roiirke,  14  Ore.,  514,  13  Pac,  483; 

••i«  Menard  v.   Hood,  68   111.,  121;  Gardner  v.   Stroever,   81   Cal.,  148, 

Lake   Shore  &  Michigan  Southern  22  Pac,  483,  6  L.  R.  A.,  90;     City 

Ry.  Co.  V.  Taylor,  134  111.,  603,  25  of   Alma   v.    Loehr,    42   Kan.,    368, 

N.  E.,  588;    Owen  v.  Ford,  49  Mo.,  22  Pac,   424;     Manufacturers  Out' 

436;    Carlin  v.  Wolff,  154  Mo.,  539,  let  Co.  v.  Longley,  20  R.  I.,  86,  37 

51  S.  W.,  679,  55  S.  W.,  441;    Ches-  Atl.,  535;    Kohn  v.  Old  T.  M.  Co., 

apeake   &   O.   R.    Co.   v.   Patton,   5  2   Utah,   13;     Cecil   Natl.   Bank   v. 

West  Va.,  234;    People  v.  Clark,  70  Thurber,  8  C.  C.  A.,  365,  59  Fed., 

N.  Y.,  518;    Cole  v.  Duke,  79  Ind.,  913;    Mexican  Ore  Co.  v.  Mexican 

107;     Georgia    Pacific    Railway   v.  G.  M.  Co.,  47  Fed.,  351.     See  also 

MayoT,   75   Ga.,    828;     Trevigne   v.  Mayor  v.  Mitchell,  79  Ga.,   807,  5 

School     Board,     31     La.     An.,  105;  S.  E.,  201. 

Street    Railroad    Co.    v.    Wildman,         •-'»  Newell    t'.    Sass,    142    III.,   104, 

58  Mich..  286,  25  N.  W.,  193;  Smith  31    N.  E.,  176. 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT.  39 

of  the  suit  the  act  is  done  by  the  defendant,  the  court  will  not 
thereby  be  deprived  of  its  jurisdiction."*^  And  where  a  man- 
datory injunction  is  sought  to  compel  the  defendant  to  remove 
an  obstruction  to  a  public  highway,  the  removal  by  the  defend- 
ant during  the  pendency  of  the  suit  will  not  deprive  the  plain- 
tiff of  the  right  to  a  final  judgment  since  the  defendant  might 
again  replace  and  maintain  the  obstruction.^^ 

§  24,  Relief  in  cases  of  trust.  Under  the  established  juris- 
diction of  equity  in  matters  of  trust  and  its  power  to  enforce 
by  trustees  the  proper  performance  of  their  duties,  the  court 
may  enjoin  trustees  from  proceeding  in  disregard  of  the  condi- 
tions necessary  to  the  proper  exercise  of  their  authority,  or 
from  an  improper  use  of  such  authority,  there  being  no  ade- 
quate remedy  at  law."*-  Thus,  a  trustee  who  is  proceeding  to 
sell  real  estate  without  having  given  the  bond  required  of  him 
by  the  instrument  creating  the  trust,  may  be  restrained  from 
proceeding  with  such  sale.^^  gg  a  cestui  que  trust  may  enjoin 
his  trustees  from  selling  the  trust  property  upon  conditions 
which  are  unfavorable  to  its  sale  and  which  are  calculated  to 
depreciate  the  value  of  the  property."**  So  where  a  policy 
of  life  insurance  is  assigned  to  a  trustee  for  the  benefit  of  a 
minor,  an  attempt  by  the  trustee  to  procure  the  money  for 
his  own  use  would  seem  to  afford  sufficient  ground  for  an 
injunction  until  the  hearing.*^  And  upon  a  bill  charging  a 
trustee  with  maladministration  of  his  trust,  and  alleging  that 
acts  are  threatened  which  would  be  irremediable  if  committed, 
it  is  proper  to  grant  a  preliminary  injunction  without  notice 
to  defendant."*^  And  it  is  proper  to  continue  until  the  final 
hearing  an  injunction  to  retain  in  the  hands  of  the  court  cbn- 

40  Lewis      V.     Town     of     North         -i.t  pool   v.   Potter,   63    111.,    533. 
Kingstown,   16  R.    I.,  15,    11    Atl.,         ^4  Dance  v.  Goldingham,  L.  R.  8 
173,   27  Am.  St.  Rep.,  724.  Ch.,  902. 

41  McFarland  v.  Lindekugel,  107  4:,  pernie  v.  Maguire,  6  Ir.  Eq., 
Wis.,  474,  83  N.  W.,  757.  137. 

42  State  r.  Maury,  2  Del.  Ch.,  141;  4o  Davis  v.  Browne,  2  Del.  Ch., 
Pool  V.  Potter.  63  111.,  533.  188. 


40  INJUNCTIONS.  [chap.  I. 

trol  of  a  trust  fund,  pendinjor  a  controversy  as  to  the  reforma- 
tion of  a  judgment,  the  testimony  being  conflicting  as  to  the 
rights  of  the  parties.^'^ 

§  25.     Jurisdiction    cautiously   exercised    against    trustees. 

But  while  the  protection  of  trusts  is  a  favorite  branch  of  the 
jurisdiction  of  equity,  great  care  is  to  be  exercised  in  granting 
injunctions  against  trustees,  lest  by  tying  their  hands  the 
trust  estate  may  be  left  without  any  representative.  Nothing 
but  a  case  of  pressing  necessity  and  imminent  probability  of 
great  danger  from  delay  will  justify  a  court  of  equity  in 
divesting  a  trustee  of  his  trust  until  he  has  had  an  opportu- 
nity of  answering.'*'*  And  an  injunction  will  not  be  awarded 
in  the  first  instance  against  an  executor  or  trustee  upon  mere 
general  charges  in  the  bill  that  he  has  abused  and  violated  his 
trust."*"  Nor  is  the  fraudulent  abuse  of  their  trust  by  the 
directors  of  a  banking  corporation  respecting  the  election  of 
directors  sufficient  ground  to  warrant  a  court  of  equity  in  inter- 
fering, there  being  no  charge  of  abuse  of  trust  or  fraud  in 
the  management  of  the  ordinary  financial  concerns  of  the 
bank.^^  And  while  equity  may  enjoin  a  trustee  who  has  been 
guilty  of  gross  misconduct  from  the  custody  of  the  trust  funds, 
yet  there  must  be  probable  danger  of  waste  or  loss  before  the 
relief  will  be  allowed  and  the  legal  right  of  the  trustee  be 
displaced.-''^  And  the  court  will  not  by  an  interlocutory 
injunction  restrain  the  transfer  of  an  alleged  trust  fund,  when 
defendant  denies  that  it  is  a  trust  fund,  and  when  the  right 
to  deal  with  it  is  the  question  to  be  determined  upon  the  final 
hearing."'-  And  a  creditor  who  is  entitled  to  the  benefit  of  a 
trust  fund  for  the  paj'ment  of  his  demand,  with  others,  is  not 

^7  Morris    v.    Willard,    84    N.    C,  •'■■"  Ogden    v.    Kip,    6    .Johns.    Ch., 

293.  160. 

■»>*  Boyd  V.  Murray,  .3  .Johns.  Ch.,  •'''  Satterfield     v.     .John,   53    Ala., 

48;     Ogden   v.   Kip,    6    .Johns.    Ch.,  127. 

160.  ''2  Bank  of    Turkey    v.    Ottoman 

■*■'  Boyd  V.  Murray,  3  Johns.  Ch.,  Co.,  L.  R.    2  Eq.,  366. 
48. 


CHAP.  I.]  GENERAL    NATURE    OF    WRIT.  41 

entitled  to  enjoin  the  trustee  from  paying'  any  part  of  the 
trust  fund  absolutely,  but  only  from  making  payment  until 
such  creditor  is  paid.^^ 

§  26.  Rights  of  petition  rarely  enjoined.  The  jurisdiction 
of  equity  over  the  right  of  petition  and  its  authorit}^  to  restrain 
corporations  from  invoking  legislative  action  have  been  the 
subject  of  some  contention  and  have  given  rise  to  an  apparent 
want  of  harmony  in  the  adjudicated  cases.  While  the  power 
of  equity  to  restrain  the  exercise  of  the  right  of  petition  to 
parliament  by  a  corporate  body  for  a  change  in  its  powers 
has  been  asserted  by  some  of  the  English  decisions/''^  it  is 
difficult  to  conceive  of  a  case  in  which  the  exercise  of  such 
power  would  be  proper,  in  the  absence  of  any  abuse  of  corpo- 
rate power  or  misapplication  of  corporate  funds.  And  a  cor- 
poration will  not  be  enjoined  at  the  suit  of  a  shareholder  from 
applying  to  parliament  in  its  corporate  capacity,  by  petition 
under  its  corporate  seal,  for  an  extension  of  its  powers,  the 
right  to  take  such  action  being  regarded  as  an  incident  to  its 
powers.^^  Nor  will  an  injunction  be  granted  in  such  case 
upon  the  ground  that,  in  the  opinion  of  the  complaining  share- 
holders, the  2neasure  whose  enactment  is  sought  is  inexpe- 
dient.^*' So  the  trustees  of  a  corporation  which  is  incorporated 
in  a  foreign  country  will  not  be  enjoined  from  applying  to 
the  legislature  of  that  country  for  power  to  increase  the 
capital  stock  of  the  company.^'''  And  equity  will  not  interfere 
by  injunction  with  the  right  to  petition  parliament  for  special 
legislation  to  supersede  the  rules  of  property  by  which  the 

S3  Carter  v.  City  of  New  Orleans,  •"■■"•  Ware    v.    Grand    Junction    W. 

19  Fed.,  659.  Co.,  2  Russ.  &  M.,  470.     See  Great 

''*  See  l7i  re  London,  Chatham  &  Western  R.  Co.  v.  Rushout,  5  DeG. 

Dover   Railway   Arrangement  Act.  &  Sm.,  290. 

L.  R.   5  Ch.  App.,  671;     Lancaster  ■'''«/«    re     London,     Chatham     & 

&  C.  R.  Co.  V.  The  North  Western  Dover   Railway   Arrangement   Act, 

R.  Co.,    2  Kay  &  J.,    293;     Heath-  L.  R.  5  Ch.  App.,  671. 

cote  V.  North  Staffordshire  R.  Co.,  f'"  Bill    v.   Sierra   Nevada   Co.,    1 

2  Mac.  &  G.,  100.  DeG.,   F.  &  .!.,   177. 


42  INJUNCTIONS.  [chap.  I. 

citizen  is  bound,  whether  by  contract  or  otherwise.^^  Where, 
however,  municipal  officers,  in  disregard  of  the  requirements 
of  their  act  of  incorporation,  have  made  an  unauthorized 
application  to  parliament  for  the  passage  of  a  bill  concerning 
their  municipal  affairs,  an  injunction  has  been  allowed  in 
behalf  of  tax  payers  to  restrain  such  officers  from  causing  the 
application  to  be  made  in  their  corporate  capacity  and  from 
defraying  its  expenses  out  of  corporate  funds.^^  But  in  this 
country  the  jurisdiction  has  not  been  recognized,  and  it  has 
been  held  that  equity  will  not  interfere  with  or  enjoin  the 
exercise  of  the  right  to  petition  the  legislature  upon  any  mat- 
ter of  public  or  private  concern.*^*^ 

§  27.  Foreign  sovereigTi  entitled  to  protection.  A  foreign 
sovereign  is  entitled  to  the  aid  of  equity  by  injunction  in  a 
proper  case  for  the  protection  of  his  property  rights.  And 
where  such  sovereign  shows  by  his  bill  that  defendants  are 
about  to  introduce  into  his  country  a  large  quantity  of  spu- 
rious paper  money  for  circulation,  which  will  greatly  injure 
plaintiff  and  his  subjects,  an  injunction  may  be  allowed.  But 
equity  interferes  in  such  case,  not  for  the  prevention  of  illegal 
or  criminal  acts  as  such,  or  upon  political  grounds,  but  only 
for  the  prevention  of  injury  to  property  and  property  rights.*'^ 

§  28.  Injunction  refused  where  legal  remedy  adequate.  It 
is  always  a  sufficient  objection  to  the  granting  of  an  injunc- 

58  Heathcote    v.    North    Stafford-  an  Attorney-General    v.    Commis- 

shire   R.    Co.,    2   Mac.    &    G.,    100.  sioners  of  Kingstown,  I.  R.  7.  Eq., 

And    In   Lancaster  &  C.  R.   Co.  v.  883.     See     also     Attorney-General 

The  North  Western  R.  Co.,  2  Kay  v.  Mayor  of  Waterford,  I.  R.  9  Eq., 

&  .1.,  293,  the  court  refused  to  re-  522;       Solicitor-General     v.     Lord 

strain    a    railway     company     from  Mayor  of   Dublin,   1   L.  R.   Ir.   Ch. 

applying  to  parliament  for  power  D.,  16G. 

to  make  a  deviation  from  the  line  '>'>  Story  v.  Jersey  City  &  B.   P. 

as  originally  established  in  viola-  P.  R.  Co.,  1  C.  E.  Green,  13. 

tion  of  an   agreement   made   with  •'  Emperor   of   Austria    v.    Day 

thf  plaintiff  company,   the  refusal  and  Kossuth,  3  DeG.,  F.  &  J.,  217. 

being  based  upon  grounds    of  pub-  aflirming   S.  C.   2  Gif.,   628. 
lie  benefit. 


CHAP.  I.] 


GENERAL  NATURE  OF  WRIT. 


43 


tion  that  the  party  aggrieved  has  a  full  and  adequate  remedy 
at  law,  and  it  is  a  well  established  rule  that  courts  of  equity 
will  not  lend  their  aid  for  the  protection  of  rights  or  the  pre- 
vention of  wrongs  where  the  ordinary  legal  tribunals  are 
capable  of  affording  sufficient  redress.^^  And  where  it  does 
not  appear  that  the  remedy  at  law  is  inadequate,  or  that  the 
party  aggrieved  is  entitled  to  more  speedy  relief  than  can 
be  obtained  by  the  ordinary  process  of  courts  of  law,  an  in- 
junction wall  be  refused.*'^  Thus,  where  complainant's  equity 
is  based  upon  a  claim  for  unliquidated  damages  for  a  sub- 
stantive injury  for  which  ample  remedy  exists  at  law,  and 
there  is  no  impediment  to  bringing  the  action  in  a  legal  forum, 
an  injunction  will  not  be  granted.^^  So  where  the  controversy 
concerns  the  title  to  personal  property,  the  removal  of  the 
property  will  not  be  enjoined  when  full  and  adequate  relief 
may  be  had  at  law.*^^     So  equity  will  not  interfere  by  injunc- 


62  Coe  V.  Columbus,  P.  &  I.  R. 
Co.,  10  Ohio  St.,  372;  Coughron  v. 
Swift,  18  111.,  414;  Winkler  v. 
Winkler,  40  111.,  179;  Bodman  v. 
Lake  Fork  Drainage  District,  132 
111.,  439,  24  N.  E.,  630;  Chicago, 
R.  I.  &  P.  R.  Co.  V.  City  of  Chi- 
cago, 143  111.,  641,  32  N.  E.,  178; 
Poage  V.  Bell,  3  Rand.,  586;  Web- 
ster V.  Couch,  6  Rand.,  519;  Akrill 
V.  Selden,  1  Barb.,  316;  Sherman 
V.  Clark,  4  Nev.,  138;  Mullen  v. 
Jennings,  1  Stockt.,  192;  Wooden 
V.  Wooden,  2  Green  Ch.,  429;  Ho- 
boken  Ferry  Co.  v.  Baldwin,  58  N. 
J.  Eq.,  36,  43  Atl.,  417;  Richards 
V.  Kirkpatrick,  53  Cal.,  433;  Fra- 
zier  V.  White,  49  Md.,  1;  City  of 
Council  Bluffs  v.  Stewart,  51  Iowa, 
385,  1  N.  W.,  628;  Welde  v.  Scot- 
ten,  59  Md.,  72;  Hettrick  v.  Page, 
82  N.  C,  65;  Moore  v.  Steelman, 
80  Va.,  331;  Tumlin  v.  Vanhorn. 
77  Ga.,  315,  3  S.  E.,  264;  Wolf 
River  L.  Co.  v.  Pelican  B.  Co.,  83 


Wis.,  426,  53  N.  W.,  678;  Mobile 
&  G.  R.  Co.  V.  A.  M.  R.  Co.,  87 
Ala.,  520,  6  So.,  407;  Winter  ;:. 
City  Council,  93  Ala.,  539,  9  So., 
366;  Highland  A.  &  B.  R.  Co.  v. 
Birmingham  U.  Ry.  Co.,  93  Ala., 
505,  9  So.,  568;  McBee  v.  Samp- 
son, 66  Fed.,  416;  Eidemiller  Ice 
Co.  V.  Guthrie,  42  Neb.,  238,  60  N. 
W.,  717,  28  L.  R.  A.,  581;  Kitzman 
V.  Minn.  T.  Mfg.  Co.,  10  N.  Dak., 
26,  84  N.  W.,  585;  Franklin  v.  Ap- 
pel,  10  S.  Dak.,  391,  73  N.  W.,  259. 
But  in  Tennessee  a  contrary  rule 
would  seem  to  prevail.  See  Wil- 
liams V.  Pile,  104  Tenn.,  273,  56  S. 
W.,  833;  Alexander  v.  Henderson, 
105  Tenn.,  431,  58  S.  W.,  648. 

63  Mullen  V.  Jennings,  1  Stockt.. 
192;  Hart  v.  Marshall,  4  Minn.. 
294. 

«i  Webster  v.  Couch,  6  Rand.. 
519. 

65  Moore  v.  Steelman,  80  Va.,  33T. 


44  INJUNCTIONS,  [chap.  I. 

tion  in  aid  of  the  right  of  stoppage  in  transitu,  but  will  leave 
the  parties  to  their  legal  remedies.""  So  the  negotiation  of  a 
promissory  note  will  not  be  enjoined  upon  the  ground  that 
the  note  has  been  materially  altered  since  its  execution  and 
delivery,  as  that  fact  would  constitute  a  good  defense  to  an 
action  at  law  upon  the  note  even  as  against  an  innocent  pur- 
chaser."'^ So  equity  will  not  enjoin  the  payment  of  a  war- 
rant issued  upon  a  claim  which  has  been  duly  allowed  by  a 
county  board  where  the  statute  gives  the  taxpayer  the  right 
of  appeal  to  the  district  court  from  the  allowance  of  any  claim 
against  the  county."*^  So  equity  will  not,  by  mandatory  in- 
junction, compel  the  doing  of  an  act  where  its  performance 
may  be  accomplished  by  the  legal  remedy  of  mandamus.^^ 
And  when  it  is  apparent  on  the  face  of  the  bill  that  a  court 
of  chancery  has  no  jurisdiction  of  the  subject-matter  of  the 
cause,  and  that  the  party  aggrieved  has  an  adequate  remedy 
at  law,  the  bill  is  obnoxious  to  a  demurrer.'^*'  But  where  the 
defendant  has  answered  and  has  gone  to  a  hearing  upon  the 
merits  without  raising  the  objection  of  an  adequate  remedy 
at  law,  such  objection  is  deemed  to  have  been  waived  and  it 
is  therefore  error  for  the  court,  after  such  a  hearing,  to  dis- 
miss the  bill  because  of  the  existence  of  a  legal  remedy."^  And 
it  has  even  been  held  that  the  defense  is  not  available  where, 
although  raised  by  the  pleadings,  it  was  not  pressed  until  the 
case  reached  the  reviewing  court  and  in  the  meantime  a  long 
and  expensive  hearing  had  been  had  on  the  merits.'^- 

•=«  Goodhart  v.  Lowe,  2  Jac.  &  W.,  quard   v.    Indian    Grave    Drainage 

349.  District,  16  C.  C.  A.,  530,  69  Fed., 

«7  Erickson     v.     First    National  867. 

Bank,  44  Neb.,  622,  62  N.  W.,  1078.  ■">  Winkler   v.    Winkler,     40     111., 

28  L.   R.  A.,  577,   48  Am.   St.  Rep.,  179. 

753.  "'  St.  Paul  &  S.  C.  R.  Co.  v.  Rob- 

'i**  Taylor  v.  Davey,  55  Neb.,  153,  inson,  41  Minn.,  394.  43  N.  W.,  75. 

75  N.  W.,  553.  "-'  Williams   v.    Concord    Church, 

"!' New  York  &  Greenwood  L.  R.  193  Pa.  St.,  120,  44  Atl.,  272;    Dris- 

Co.   V.   Township   of   Montclair,    47  coll  v.  Smith,  184  Mass.,  221,  68  N. 

N.    .1.    Eq.,    591,    21    Atl.,    493;    Co-  R.,  210. 


CHAP.  I.] 


GENERAL  NATURE  OF  WRIT. 


45 


§  29.  Statutory  remedy  a  bar;  when  objection  of  legal  rem- 
edy to  be  taken.  Where  a  pos(itive  statutory  remedy  exists  for 
the  redress  of  particular  grievances,  a  court  of  equity  will  not 
interfere  by  injunction  and  assume  jurisdiction  of  the  ques- 
tions involved;  nor  will  it  enjoin  proceedings  under  such 
statutory  remedy,  since  such  interference  would  place  the 
judicial  above  the  legislative  power  of  the  government."-' 
Legal  rights  should  be  left  to  the  decision  of  a  legal  forum, 
and  in  the  absence  of  special  circums,tances  warranting  the 
interposition  of  the  extraordinary  aid  of  courts  of  equity,  such 
courts  will  not  interfere  to  protect  a  purely  legal  right,  prop- 


t:!  Brown's  Appeal,  66  Pa.  St., 
155;  Hornesby  v.  Burdell,  9  S.  C. 
303.  In  Brown's  Appeal,  a  land- 
lord had  begun  proceedings  before 
a  justice  of  the  peace,  in  pursu- 
ance of  a  statutory  remedy,  to  re- 
cover possession  of  premises  de- 
mised. Before  judgment  the  pro- 
ceedings were  enjoined  in  the 
common  pleas.  Thompson,  C.  J., 
says:  "The  landlord  and  tenant 
act  of  1863  provides  an  ample 
remedy  whereby  to  recover  pos- 
session of  leased  premises  when  it 
is  alleged  that  the  term  has  ex- 
pired. It  is  not  a  one-sided  rem- 
edy, for  it  allows  the  defendant 
ample  scope  to  allege  and  prove 
any  legal  defense  he  may  have 
against  the  plaintiff's  demand, 
with  the  right  of  review  by  appeal 
or  certiorari.  It  is  a  complete 
system  for  that  species  of  contro- 
versy. I  do  not  know  that  it  is  a 
wise  system — that  may  be  doubted ; 
but  it  is  complete  in  itself.  Pro- 
ceedings under  this  system  were 
legally  and  regularly  begun  by  the 
defendants,  as  appears  by  the  rec- 
ords before  us;    but  before  a  final 


result  was  arrived  at  the  court  ot 
common  pleas  interposed  by  in- 
junction and  stopped  them.  The 
reason  assigned  for  this  was  sup- 
posed hardship  upon  the  plaintiffs, 
if  the  plaintiffs  in  the  proceeding 
repossessed  themselves  of  what 
they  had  leased  to  the  defendants. 
This  was  manifest  interference 
without  authority  of  law.  The 
court  had  no  jurisdiction  in  equity 
of  the  proceedings.  They  were  not 
contrary  to  law;  and  if  they  had 
been,  an  injunction  was  not  a  cor- 
rectional process.  That  was  to  be 
done  by  the  process  provided  in  the 
act,  viz.:  by  appeal  or  certiorari. 
These  were  the  legal  matters  pro- 
vided in  the  act,  and  a  court  of 
equity  could  not  supplement 
them.  Courts  may  restrain  acts 
contrary  to  law,  but  not  where 
they  are  according  to  positive  law. 
That  would  be  to  put  the  courts 
above  the  legislature.  Where  a 
positive  statutory  remedy  exists 
and  may  be  pursued,  equity  can 
not  interfere  on  the  ground  of  ir- 
reparable mischief.  The  'law  in- 
jures  no   one'    is   a   maxim    which 


46 


INJUNCTIONS. 


[chap,  I. 


erly  triable  at  law.'^'*  And  the  assertion  of  a  right  whose 
existence  or  non-existence  is  properly  determinable  at  law, 
and  the  exercise  of  which  can  do  no  injury  to  the  party  deny- 
ing the  existence  of  the  right,  affords  no  ground  for  equitable 
interference^^  And  in  the  courts  of  the  United  States  the 
objection  to  granting  relief  by  injunction,  that  the  party 
aggrieved  has  ample  remedy  at  law,  need  not  be  taken  in  the 
pleadings,  but  may  be  enforced  by  the  court  sim  spontc,  since 
it  goes  to  the  jurisdiction  of  the  forumj^  It  is  to  be  observed, 
however,  that  by  a  legal  remedy  within  the  meaning  of  the 
rule,  which  will  operate  as  a  bar  to  relief  in  equity  by  in- 
junction, is  meant  a  remedy  which  can  be  found  in  the  courts 
of  the  same  state;  and  that  is  not  an  adequate  legal  remedy 
of  which  the  person  aggrieved  can  avail  himself  only  by  go- 
ing into  a  foreign  jurisdiction.''"''  And  where  a  remedy  exists 
in  equity,  a  subsequent  statutory  grant  of  a  legal  remedy 
w^ill  not  deprive  a  court  of  equity  of  its  jurisdiction  unless 


inculcates  obedience  to  law.  Where 
positive  law  in  point  of  fact  in- 
jures, it  is  the  legislature  which 
must  furnish  the  corrective; 
courts  can  not.  Irreparable  dam- 
ages can  not  be  alleged  against 
statutory  remedies  legally  pursued, 
and  that  was  the  case  with  the 
plaintiffs  before  the  magistrate. 
These  principles  are  plain  and 
need  neither  authority  nor  elab- 
oration to  substantiate.  We  think 
the  court  below  had  no  jurisdic- 
tion in  equity  to  restrain  these  de- 
fendants from  proceedings  under 
the  landlord  and  tenant  act  re- 
ferred to  to  try  their  right  to  re- 
possess themselves  of  the  leased 
premises  in  question.  The  decree 
in  the  case  is  therefore  reversed, 
and  the  bill  is  dismissed  at  the 
cost  of  the  appellees."  See  Attor- 
ney-General r.  Ashborne  R.  G.  Co., 


(1903)  1  Ch.,  101:  Richardson  v. 
Murphy,    (1899)    1  L.  R.  Ir.,  248. 

■^  Wooden  v.  Wooden,  2  Green 
Ch.,  429. 

7s  Doughty  V.  Somerville  &  E.  R. 
Co.,  3  Halst.  Ch.,  51. 

"f.  Allen  V.  Car  Co.,  139  U.  S.,  658. 
11  Sup.  Ct.  Rep.,  682;  Hoey  v. 
Coleman,  46  Fed.,  221;  Parker  v. 
Winnipiseogee  L.  C.  &  W.  Co.,  2 
Black,  545.  The  decision  is  based 
upon  the  sixteenth  section  of  the 
judiciary  act  of  1789,  R.  S.  U.  S., 
§  723,  which  provides  that  "suits 
in  equity  shall  not  be  sustained 
in  either  of  the  courts  of  the 
United  States  in  any  case  where  a 
plain,  adequate  and  complete  rem- 
edy can  be  had  at  law."  But  see 
Foltz  V.  St.  L.  &  S.  F.  Ry.  Co.,  8 
C.  C.  A.,   635,  60  Fed.,  316. 

■77  Stanton  v.  Embry,  46  Conn., 
595. 


CHAP,  I.]  GENERAL  NATUEE  OF  WRIT.  47 

the  equitable  remedy  is  extinguished  by  some  positive  prohibi- 
tory provision  of  the  statute/^  And  where  a  suit  pending 
upon  the  equity  side  of  a  federal  court  is  one  which  properly 
entitles  the  plaintiff  to  relief  by  injunction  according  to  the 
established  principles  of  that  court,  it  constitutes  no  bar  to 
the  jurisdiction  that  the  plaintiff  has,  under  the  laws  of  the 
state  where  the  suit  is  pending,  an  adequate  remedy  at  law 
upon  the  same  cause  of  action.  The  statutes  of  a  state  can 
not  oust  the  federal  courts  of  a  jurisdiction  which  is  vested  in 
them  under  the  established  usages  and  practice  of  those 
courts".'^  ^ 

§  30.  Remedy  at  law  defined.  The  mere  existence,  how- 
ever, of  a  remedy  at  law  is  not  in  itself  stufficient  ground 
for  refusing  relief  in  equity  by  injunction ;  nor  does  the  ex- 
istence or  non-existence  of  a  remedy  at  law  afford  a  test 
as  to  the  right  to  relief  in  equity.  To  deprive  a  plaintiff  of 
the  aid  of  equity  by  injunction  it  must  also  appear  that  the 
remedy  at  law  is  plain  and  adequate ;  in  other  words,  that  it 
is  as  practical  and  efficient  to  secure  the  ends  of  justice  and 
its  proper  and  prompt  administration  as,  is  the  remedy  in 
equity.  And  unless  this  is  sho\ATi  a  court  of  equity  may 
lend  its  extraordinary  aid  by  injunction,  notwithstanding  the 
existence  of  a  remedy  at  law.*^*^    But  by  a  plain  and  adequate 

T8  Woodward    v.   Woodward,    143  Cal.,  378,  46  Pac,  166,  55  Am.  St. 

Mo.,  241,  49   S.  W.,  1001.  Rep.,  74;     Coler  v.  Board  of  Com- 

79  Smyth  V.  Ames,  169  U.  S.,  466,  missioners,  89  Fed.,  257;  Bank  of 
18  Sup.  Ct.  Rep.,  418;  Third  Na-  Kentucky  v.  Stone,  88  Fed.,  383; 
tional  Bank  v.  Mylin,  76  Fed.,  385.  Drew  v.  Town  of  Geneva,  150  Ind., 

80  Watson  v.  Sutherland,  5  Wal.,  662,  50  N.  E.,  871,  48  L.  R.  A.,  814; 
74;  Walla  Walla  v.  Walla  Walla  La  Mothe  v.  Fink,  12  Chicago  Le- 
Water  Co.,  172  U.  S.,  1,  19  Sup.  Ct.  gal  News,  152;  Foltz  v.  St.  L.  & 
Rep.,  77;  Irwin  v.  Lewis,  50  Miss.,  S.  F.  Ry.  Co.,  8  C.  C.  A.,  635.  60 
363;  Beaser  v.  City  of  Ashland,  Fed.,  316;  Driscoll  v.  Smith,  184 
89  Wis.,  28,  61  N.  W.,  77;  Welton  Mass.,  221,  68  N.  E.,  210.  And  see 
V.  Dickson,  38  Neb.,  767,  57  N.  W.,  Boyce's  Ex'rs  v.  Grundy,  3  Pet., 
559,  22  L.  R.  A.,  496,  41  Am.  St.  210;  Sloane  v.  Clauss,  64  Ohio  St.. 
Rep.,  771;     Kell.ogg    v.    King,  114  125,  59  N.  E.,  884. 


48  INJUNCTIONS.  [chap.  I. 

remedy  at  law  within  the  meaning  of  the  rule  is  not  meant 
the  right  to  resort  to  every  remedy  given  by  the  forms  of 
legal  procedure ;  and  if  any  form  of  action  at  law  will  afford 
a  complete  and  adequate  remedy  the  case  falls  within  the 
principle  which  tests  the  right  to  resort  to  equity,  and  the 
court  will  refuse  to  interfere  by  injunction.**^  And,  ordinarily, 
an  injui'y  isj  not  considered  irreparable  within  the  meaning 
of  the  rule  when  the  loss  complained  of  may  be  made  good 
by  the  payment  of  money,  or  when  the  party  aggrieved  may 
be  fully  reinstated  in  the  position  which  he  has  lost  by  the 
act  in  question.*-  But  the  remedy  at  law  will  not  be  regarded 
as  adequate  if  its  adequacy  is  dependent  upon  the  will  of  the 
opposing  party .^2 

§  31.  How  injunction  granted.  Interlocutory  injunctions 
are  usually,  though  not  always,  granted  upon  the  filing  of  a 
bill  setting  forth  complainant's  equities  and  concluding  with 
a  prayer  for  the  relief.  Where,  however,  a  court  of  equity  has 
already  acquired  jurisdiction  over  the  siubject-matter  of  the 
action  and  of  the  parties  thereto,  it  would  seem  that  no  bill 
is  necessary.  And  wherever  the  court  has  power  to  make  an 
order  which  a  party  to  the  action  is  bound  to  obey,  in  conse- 
quence of  his  being  either  actually  or  constructively  a  party 
to  the  suit,  it  may  enforce  obedience  to  its  order  by  the 
process  of  injunction  issued  upon  a  petition  in  the  cause  with- 
out the  filing  of  a  bill.^^  But  the  writ  will  not  be  allowed  in 
an  improper  case,  even  by  the  consent  of  both  parties,  espe- 
eiiilly   where  the   rights  of  third   persons   intei-vene.*-'' 

^  32.  When  new  suit  unnecessary.  Whei-e  an  injunction  is 
sought  merely  as  ;inxili;ii-y  to  an  action  already  begun,  and 

">' La  Mothe  v.  Fink.  12  Chicago  *<:' Bank    of    Kentucky  v.   Stone, 

Legal  News,  152.  88  Fed.,  383. 

«2  Crescent    City    L.    S.    L.    &    S.  «•  In   the  Matter    of    Hemiup,   2 

H.  Co.  V.  Police  Jury.  32  La.  An.,  Paige,  316. 

1192;     Irwin    v.    Great    S.   T.   &   T.  «r.  whelpley    r.     Erie    R.   Co.,    6 

Co.,  3(;   La.  An.,  772.  Blatch.,  27L 


CHAT.  I.]  GEXEKAL    XATURK    OF    WRIT.  49 

the  object  desired  can  be  as  readily  obtained  by  a  motion  in 
the  original  action,  a  new  suit  will  not  be  entertained  which 
is  instituted  for  the  sole  purpose  of  obtaining  such  injunc- 
tion, since  the  exercisie  of  the  jurisdiction  under  such  circum- 
stances would  be  an  encouragement  to  vexatious  litigation.***^ 

§33.  Not  granted  against  persons  beyond  jurisdiction; 
when  granted  against  persons  within  the  jurisdiction  though 
the  res  is  beyond.  The  jurisdiction  of  equity  by  way  of  in- 
junction being,  as  we  have  already  seen,  strictly  w  personam, 
it  will  not  be  exercisied  against  persons  and  property  beyond 
the  borders  of  the  state  in  which  the  proceedings  are  insti- 
tuted. Neither  law  nor  comity  between  distinct  state  govern- 
ments recognizes  the  authority  of  one  state  to  exercise  juris- 
diction over  citizens  and  property  beyond  its  borders.^^  Nor 
will  equity  attempt  by  injiuiction  to  restrain  a  non-resident 
defendant,  who  has  not  been  served  with  process,  and  who 
is  not  subject  to  the  jurisdiction  of  the  court,  from  perform- 
ing some  act  beyond  the  state,  even  though  there  has  been 
constructive  service  by  publication  as  to  such  defendant.*** 
But  where  the  court  has  jurisdiction  of  the  defendants,  either 
by  personal  service  of  process,  or  by  voluntary  appearance  in 
the  case  of  non-residents,  an  injunction  may  be  granted  to 
restrain  a  trespass  or  other  threatened  injur}'  to  property 
located  beyond  the  territorial  jurisdiction  of  the  court.**^  It 
is  to  be  observed,  however,  that  the  relief  is  confined  to  cases 
where  the  injunction  operates  strictly  in  personam  and  that 
it  will  not  be  granted  where  the  enforcement  of  the  court's 
decree  may  require  the  excution  of  some  process  of  the  court 
operating  upon  the  subject-matter  of  the  suit  and  having  no 

S6  Hamer  v.  Kane,  7  Nev.,  61.  395;     Jennings  v.   Beale,    158    Pa. 

87  Western   Union   T.    Co.   v.   Pa-  St.,     283,     27     Atl.,     948;     Clad    v. 
cific  &  A.  T.  Co.,  49  111.,  90.  Paist,  181  Pa.  St.,  148,  37  Atl.,  194; 

88  Hazlehurst  v.  Savannah,  G.  &  Schmaltz   v.    York    Mfg.     Co..     204 
N.  A.  R.  Co.,   43  Ga.,  13.  Pa.  St.,  1,  53  Atl.,  522,  59  L.  R.  A., 

8'J  Munson    v.    Tryon,    6     Phila..     907,  93  Am.  St.  Rep.,  782. 
4 


50  INJUNCTIONS.  [chap.  I. 

extra-territorial  effect.^*'  But  an  injunction  does  not  affect 
the  rights  of  third  parties  which  have  been  acquired  in  good 
faith  when  they  are  not  parties  or  privies  to  the  suit.^^ 

§  34.  Positive  averments  of  fact  necessary.  An  injunction 
being  a  harsh  remedy  will  not  be  granted  in  the  first  instance 
except  upon  a  clear  prima  facie  case  and  upon  positive  aver- 
ments of  the  equities  on  which  the  application  for  the  relief 
is  based.  And  while  it  is  not  essential  that  complainant 
should  establish  his  case  upon  an  application  for  an  interlocu- 
tory injunction  with  the  same  degree  of  certainty  that  would 
be  required  upon  the  final  hearing,  he  must  nevertheless  al- 
lege positively  the  facts  constituting  his  grounds  for  relief.^^ 
Thus,  it  is  well  established  that  the  mere  allegation  of  ir- 
reparable injury  will  not  suffice  to  warrant  an  injunction,  but 
the  facts  must  appear  on  which  the  allegation  is  predicated  in 
order  that  the  court  may  be  satisfied  as  to  the  nature  of  the 
injury.*-^^  And  such  allegations,  being  merely  the  legal  con- 
clusions of  the  pleader,  are  not  admitted  by  demurrer,'^^  nor 
by  the  failure  of  the  defendant  to   deny  them.^^     Nor  will 

soMunson  v.  Tryon,  6  Phila:,  395;  McHenry   v.  Jewett,  90  N.  Y.,  58; 

Clad  V.  Paist,  181  Pa.  St.,  148,  37  Brass  v.  Rathbone,  153  N.  Y.,  435, 

Atl.,  194.  47  N.  E.,  905;   Portland  v.  Baker,  8 

91  Roberts  v.  Davidson,  83  Ky.,  Ore.,  356;  State  v.  Wood,  155  Mo., 
279.  425,  56  S.  W.,  474,  48  L.  R.  A.,  596; 

92  Jones  V.  Macon  &  B.  R.  Co.,  Illinois  Central  R.  Co.  v.  City  of 
39  Ga.,  138;  Perkins  v.  Collins,  2  Chicago,  138  111.,  453,  28  N.  E.,740; 
Green  Ch.,  482;  Holdrege  v.  Chicago  Public  Stock  Exchange  v. 
Gwynne,  3  C.  E.  Green,  26;  Camp-  McClaughry,  148  111.,  372,  36  N.  B., 
bell  V.  Morrison,  7  Paige,  157;  88;  Otis  v.  Sweeney,  48  La.  An., 
Bank  of  Orleans  v.  Skinner,  9  940,  20  So.,  229;  Burrus  v.  City  of 
Paige,  305;  Bogert  v.  Haight,  lb.,  Columbus,  105  Ga.,  42,  31  S.  E., 
297;  McHenry  v.  Jewett,  90  N.  124;  Farland  v.  Wood,  35  W.  Va., 
Y.,  58.  458,  14  S.  E..  140;     Becker  v.  Mc- 

!i'i  Branch     v.      Supervisors.      13  Graw,  48  W.  Va.,  539,  37  S.  E.,  532. 

Cal.,   190;     Leitham    v.    Cusick,   1  »<  Beatty   v.    Smith,   14    S.    Dak., 

Utah,     242;      McGregor    v.    Silver  24,  84  N.  W.,  208. 

King  Mining  Co.,  14  Utah,  47,   45  '•'"•  McCormick  ?;.  Riddle,  10  Mont.. 

Pac,    1091.   60  Am.    St.   Rep.,   883;  467.  26  Pac.  202. 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT,  51 

merely  argumentative  allegations,  or  inferences  from  the  facts 
stated,  suffice  to  meet  the  requirements  of  the  rule.^^  So 
when  an  injunction  is  sought  upon  the  ground  of  fraud  it  is 
not  sufficient  that  the  averments  should  be  upon  information 
and  belief,  but  they  should  be  positive,  and  founded  upon 
plaintiff's  own  knowledge  or  that  of  some  person  cognizant 
of  the  facts.^''^  And  in  the  absence  of  positive  allegations  that 
the  injury  complained  of  has  already  been  inflicted  or  is 
threatened,  relief  will  be  denied.^^  So  a  bill  which  is  want- 
ing in  definite  and  positive  averments  of  facts  upon  which 
the  right  to  relief  is  based,  is  bad  upon  demurrer.^^ 

§  35.  Allegations  on  information  and  belief  insuflBcient.  The 
relief  will  not  ordinarily  be  allowed  where  the  facts  upon 
which  complainant's  equities  rest  are  stated  only  upon  in- 
formation and  belief,  but  they  should  be  made  to  appear  by 
positive  averments  founded  on  complainant's  own  knowl- 
edge,^  or  that  of  some  person  cognizant  of  the  facts.^  Nor  will 
it  suffice  that  the  averments  of  the  bill  are  made  upon  the 
information  of  the  party  complaining  without  stating  his 
sources  of  information.^  And  an  injunction  granted  ex  parte, 
where  some  of  the  material  allegations  of  the  bill  are  stated 
on  information  and  belief,  can  not  be  sustained  in  the  absence 
of  proof  of  their  correctness.  To  sustain  an  injunction  granted 
without  notice  all  the  essential  and  material  allegations  which 
are  not  positively  stated  in  the  bill  must  be  otherwise  proved.-* 
Where,  however,  the  injunction  is  granted  upon  notice  to  de- 
fendant of  the  motion,  the  fact  that  many  of  the  material 
averments  of  the  bill  are  stated  upon  information  and  belief 

96  Battle  V.  Stephens,  32  Ga.,  25.  Minn.,  49;    Farland  v.  Wood.  35  W. 

07  Brooks  V.  O'Hara,  8  Fed.,  529.  Va.,  458;  14  S.  E.,  140. 

98  Buck  V.  Backarack,  45  N.  J.  2  Youngblood  v.  Schamp,  2  Mc- 
Eq.,  123,  17  Atl.,  548.  Cart,  42. 

99  Blakeslee  v.  M.  P.  R.  Co.,  43  3  Blondheim  v.  Moore,  11  Md., 
Neb.,  61,  61  N.  W.,  118.  365. 

1  Jones  V.  Macon  &  B.  R.  Co.,  39  *  Dinehart  v.  Lafayette,  19  Wis , 
Ga.,  138;  Armstrong  v.  Sanford,  7     677. 


52  INJUNCTIONS.  [chap.  I. 

will  not  prevent  the  granting  of  the  relief  where  defendant  in 
no  manner  denies  such  averments.-^  Nor  do  the  mere  apprehen- 
sions and  fears  of  complainant,  unsustained  by  facts  estab- 
lishing their  probability,  constitute  a  sufficient  ground  to  war- 
rant the  interference  of  equity  by  injunction,  since  such  fears 
may  exist  without  any  substantial  reason.  Not  the  complain- 
ant, therefore,  but  the  court,  must  be  satisfied  that  a  wrong 
is  about  to  be  commited  which  will  be  irrepara]t)Ie  in  its  nature 
before  the  relief  will  be  allowed." 

§  36.  When  verification  dispensed  with.  x\lthough  it  is  gen- 
erally requisite  that  an  injunction  bill  should  be  verified  by 
the  oath  of  complainant  or  other  person  cognizant  of  the 
facts,  yet  this  is  not  in  all  cases  indispensable.  It  will  suffice 
if  the  confidence  of  the  court  is  obtained,  and  this  may  be  done 
as  well  by  documentary  evidence,  where  such  evidence  satis- 
factorily establishes  complainant's  equities.^  And  if  it  is 
apparent  upon  a  final  hearing  that  complainant  is  entitled  to 
an  injunction,  it  will  not  be  refused  because  the  bill  is  not 
verified.'*  But  the  relief  will,  not  be  allowed  upon  a  bill  whose 
material  averments  are  all  denied  by  the  answer  of  defend- 
ants under  oath."  If,  however,  the  bill  charges  forgery  as 
one  of  the  grounds  for  relief,  a  denial  in  the  answer,  upon  in- 
formation and  belief,  will  not  prevent  the  issuing  of  the  writ.^^ 
§  37.  Precision  required  in  writ;  form  not  essential ;  no  ob- 
jection that  case  is  without  precedent.  The  writ  of  injunc- 
tion should  contain  a  description  of  the  particular  things  or 
acts  concerning  which  the  defendant  is  enjoined,  in  order  that 
there  may  be  no  opportunity  for  misapprehension.^'  No  pai-- 
ticular  form,  however,  is  reciuired,  and  the  writ  will,  of  course, 

■'■>  Gibson  v.  Gibson,  46  Wis.,  462.  '■'  Lady  Bryan  v.   Lady  Bryan,  4 

<>Warfield  v.  Owens,  4  Gill,  364:  Nev.,   414. 

Goodwin  v.  New  York,  N.  H.  &  H.  i"  United   States   v.    Parrott.   Mc- 

R.  Co.,  43  Conn.,  494.  All.  C.  C,  271. 

7  Negro    Charles     v.     Sheriff,    12  n  Whipple      v.      Hutchinson,      4 

Md.,   274.  Blatch.,  190. 

N  Hawkins  r.  Hunt.  14  111.,  42. 


CllAV.l.]  GENEBAL    XATUKE    OF    WRIT.  53 

be  varied  to  meet  the  peculiar  circumstances  of  each  particular 
case.  It  is  sufficient  that  it  be  an  authentic  notification  to 
the  defendant  of  the  mandate  of  the  court,  which  he  must 
then  obey  at  his  peril. '-  It  is  never  an  objection  to  the  grant- 
ing of  an  injunction  that  the  ease  is  without  precedent  upon 
its  facts  if  it  is  one  which  falls  wnthin  established  principles 
of  equity  jurisdiction  and  beneficial  results  follow  from  the 
granting  of  the  writ.^-"^  Indeed,  in  many  cases  such  as  those 
involving  fraud,  where  the  manifestations  of  the  injury  are 
as  varied  as  the  ingenuity  of  the  human  mind,  to  require  a; 
precedent  as  a  condition  to  the  granting  of  relief  would  often 
be  a  complete  denial  of  the  relief  itself  and  a  consequent 
failure  of  justice  in  a  case  which  was  properly  one  of  equi- 
table  cognizance. 

§  38.  Injunction  may  be  allowed  though  not  prayed.  The 
court  may,  under  certain  circumstances,  grant  an  injunction 
upon  the  final  hearing  of  the  cause,  although  not  prayed  for 
by  the  bill.^*  And  it  has  been  held  that  after  a  decree  in  a 
foreclosure  suit,  the  mortgagor  in  possession  may  be  restrained 
from  committing  waste,  although  no  injunction  was  sought 
by  the  bill.^^  And  the  plaintiff  may  be  entitled  to  a  pre- 
liminary injunction  although  a  final  injunction  is  not  prayed 
where  other  appropriate  relief  is  asked  which  is  substantially 
equivalent  to  a  permanent  injunction.'" 

§  39.  When  injunction  revived  or  reinstated.  It  is  within 
the  discretion  of  a  court  of  equity  to  revive  an  injunction 
after  it  has  been  dissolved ;  and  upon  a  proper  showing  of 
complainant's  right  to  relief  the  injunction  will  be  reinstated, 
the  court  being  regarded  as  ahvays  open  for  this  purpose.''" 

12  Summers  v.  Parish,  10  Cal ,  i^  Blomfield  v.  Eyre,  8  Beav.,  250. 
347.  i-i  Goodman  v.  Kine,  8  Beav.,  379. 

13  Toledo,  A.  A.  &  N.  M.  R.  Co.  ic  Hamilton  v.  Wood,  55  Minn., 
V.  Pennsylvania  Co.,  54  Fed.,   746,  482,  57  N.  W.,  208. 

19  L.  R.  A.,  395;  Nashville,  C.  &  it  Tucker  v.  Carpenter,  Hemp. 
St.  L.  Co.  V.  McConnell,  82  Fed.,  441;  Radford's  Ex'rs  v.  Innes'  Ex- 
65.  ecutrix,     1    Hen.   &   Mun.,     8;    Bil- 


54  INJUNCTIONS.  [chap.  I. 

And  where  sufficient  facts  are  stated  in  a  supplemental  bill  to 
warrant  an  injunction,  it  will  be  granted,  although  the  in- 
junction granted  on  the  original  bill  has  been  dissolved.^* 
And  when  an  interlocutory  injunction  is  allowed,  but  the  bill 
is  afterward  dismissed  for  want  of  prosecution,  the  final  order 
of  dismissal  does  not  operate  as  res  judicata  upon  the  ques- 
tions involved.^  ^  But  when  a  second  bill  is  filed  to  obtain  a 
second  injunction  in  relation  to  the  same  subject-matter  and 
between  the  same  parties,  it  is  not  enough  to  allege  new 
grounds  of  equity  not  suggested  in  the  former  bill;  it  must 
be  shown  that  the  new  equity  alleged  did  not  exist  at  the 
time  the  original  bill  was  filed,  or,  if  it  existed,  that  it  was 
unknown  to  the  complainant.^^  Nor  will  an  injunction  once 
dissolved  be  reinstated  simply  upon  new  evidence,  no  new 
ground  of  equity  being  stated  which  was  not  alleged  in  the 
original  bill.-^ 

§  40.  New  injunction  not  allowed  on  same  equities.  Under 
a  statute  prohibiting  a  second  ex  parte  application  to  an 
officer  out  of  court,  after  the  court  has  refused  an  injunction, 
complainant  will  not  be  allowed  the  relief  upon  a  new  bill 
substantially  the  same  as  the  first.^-     So  if,  after  argument, 

lingslea   v.   Gilbert,   1   Bland,    568.  continued,  extended  or  contracted; 

In  Tucker  v.   Carpenter,  Johnson,  in  short,  it  is  adapted  and  used  by 

J.,  delivering  the  opinion    of    the  courts  of  equity  as  a  process  for 

court,  says:   "A  writ  of  injunction  preventing     wrong     between     and 

may  be  said  to  be  a  process  capa-  preserving  the   rights    of    parties 

ble  of  more  modifications  than  any  in  controversy  before  them." 

other  in   the  law;     it  is    so    mal-  is  Fanning  v.  Dunham,  4  Johns. 

leable    that    it    may  be  molded  to  Ch.,  35. 

suit     the     various     circumstances  i'»  Chamberlain   v.    Sutherland,  4 

and  occasions  presented  to  a  court  Bradw.,  494. 

of  equity.     It  is  an  instrument  in  20  Bank  of   U.    S.   v.   Schultz,   3 

its  hands  capable  of  various  appli-  Ohio,  61.    See  also  Breeze  v.  Haley, 

cations  for  the  purpose  of  dispens-  11    Col.,  351,   18  Pac,  551. 

ing  complete    justice    between  the  -'i  Lowry  i\  McGee,  5  Yerg.,  238. 

parties.     It  may  be  special,  prelim-  --  Cummins  v.  Bennett.  8  Paige, 

inary,     temporary     or     perpetual;  79. 

and  it  may  be  dissolved,  revived, 


CHAP.  I.]  GENERAL  NATURE  OF  WRIT.  55 

the  court  has  dissolved  an  injunction  granted  on  the  original 
bill,  and  complainant  then  applies  to  another  officer  ex  parte, 
upon  a  bill  containing  substantially  the  same  grounds,  no  in- 
junction will  be  allowed.-^  And  where  after  dissolution  a  bill 
precisely  similar  to  the  first  is  filed  by  another  party  to 
obviate  a  difficulty  arising  in  the  former  suit,  it  being  ap- 
parent that  the  second  bill  is  filed  in  the  interest  of  the  former 
complainant  in  whose  behalf  the  relief  is  sought,  an  injunc- 
tion will  be  refused.--*  So,  after  the  refusal  of  a  preliminary 
injunction,  a  second  application  for  the  relief  will  be  denied 
when  based  upon  the  same  bill,  with  an  amendment  alleging 
an  additional  fact  which  was  well  known  to  plaintiffs  at  the 
time  of  filing  the  original  bill.-'^ 

§  41.  Right  to  relief  on  amended  bill.  While  the  right 
of  the  party  complaining  to  amend  his  bill  and  renew  the 
application,  even  after  a  dissolution  upon  the  merits,  may 
be  regarded  as  clearly  established  by  the  authorities,-'^  yet 
the  exercise  of  the  right  is  guarded  with  much  caution,  and 
it  is  only  to  be  permitted  under  such  peculiar  circumstances 
as  indicate  that  the  promotion  of  justice  requires  it.-^  And 
where  an  injunction  has  been  dissolved  for  want  of  equity 
in  the  bill,  an  ex  parte  injunction  will  not  be  granted  upon 
an  amended  bill,  or  upon  a  new  one  supplying  the  equity  of 
the  old;  but  the  court  will  require  notice  to  the  opposite 
party. -^     Where  an  injunction  has  already  been  granted  and 

23  Harrington  v.  American  L.  I.  chancellor,  as  follows:  "I  lay  down 

&  T.  Co.,  1  Barb.,  244.  the  rule  that  where  an  injunction 

-*  Endicott  v.  Mathis,  1  Stockt,  has   been  dissolved    for    want    of 

110.  equity  in  the  bill  this  court  ought 

25  Beckwith  v.  Blanchard,  79  not  to  grant  an  ex  parte  injunc- 
Ga.,  303,  7  S.  E.,  224.  tion    upon    an    amended     bill,    or 

26  Buckley  v.  Corse,  Saxt.,  504.  upon    a    new    bill  supplying    that 

27  Calderwood  v.  Trent,  9  Rob.  equity.  If  a  complainant  is  will- 
(La.),  227.  ing  to  swear  to  a  case  fitting  the 

28  Hornor  v.  Leeds,  2  Stockt.,  86.  opinion  of  the  court,  the  rights  of 
The  reason  for  the  rule  is  forcibly  a  defendant  should  not  be  inter- 
stated  in  this  case  by  Williamson,  fered  with  upon  such  a  bill  with- 


56  INJUNCTIONS.  [chap.  I, 

is  still  iu  force,  its  repetition  is  derogatory  to  the  authority 
of  the  court  and  will  not  be  allowed.-^  And  where  the  relief 
sought  is  purely  preventive  a  court  of  equity  will  not  con- 
tinue or  perpetuate  an  injunction  after  the  cause  for  which 
it  was  granted  has  been  removed  and  the  rights  of  com- 
plainant are  no  longer  in  danger.^^  But,  though  the  writ 
was  improperly  granted  in  the  first  instance,  if  it  has  been 
allowed  to  stand  until  final  hearing,  it  is  not  error  then  to 
perpetuate  it,  sufficient  equity   appearing.^^ 

§  42.    When  jurisdiction  exercised  by  courts  of  last  resort. 

The  granting  of  injunctions  being  an  exercise  of  original  and 
not  of  appellate  jurisdiction,  a  court  of  last  resort  whose 
jurisdiction  is  limited  by  the  state  constitution  will  not  be  al- 
lowed to  enlarge  or  extend  its  jurisdiction  to  the  granting 
of  injunctions  in  cases  pending  in  the  inferior  courts  where 
this  power  is  not  granted  it  by  the  constitution.^-  So  if  the 
constitution  of  a  state  limits  the  original  jurisdiction  of  the 

out  affording  the  defendant  an  op-  power  to  allow  these  is  a  part  of 

portunity  of  being  first  heard."  the      appellate      jurisdiction,     the 

2»  Livingston      v.      Gibbons,      4  grant   of   which   is    authorized   by 

Johns.  Ch.,  571.  the     constitution,     and     has     been 

30  Wiswell  V.  First  Congrega-  made  by  the  law.  But  to  allow  an 
tional  Church,  14  Ohio  St.,  31.  injunction  in  a  case  pending  in  an- 

31  Clark  V.  Young,  2  B.  Mon.,  57;  other  court  would  be  an  exercise 
Smith  V.  Blake,  96  Mich.,  542,  55  of  original  and  not  of  appellate 
N.  W.,  978.  jurisdiction.       Now     the     original 

■f- Merrill  v.  Lake,  16  Ohio,  373;  jurisdiction  conferred  upon  this 
Kent  V.  Mehaffy,  2  Ohio  St.,  498.  court  by  the  constitution  is  lim- 
In  the  latter  case,  Thurman,  J.,  ited  to  quo  warranto,  mandamus, 
pronouncing  the  opinion  of  the  habeas  corpus  and  procedendo. 
court,  says:  "That  we  can  allow  Art.  4,  sec.  2.  ...  It  would  be 
an  injunction  in  a  case  pending  in  wholly  inconsistent  with,  and  in  a 
this  court  upon  an  appeal  is  very  great  measure  destructive  of.  the 
clear.  An  injunction  may  be  th'5  judicial  system  it  ordains,  to  sup- 
very  object  of  the  suit — the  final  pose  that  this  original  jurisdiction 
decree  sought — and  so  a  provi-  can  be  enlarged  by  law.  It  is  true 
fiional  injunction,  during  the  pend-  there  is  no  express  prohibition 
f-ncy  of  the  suit,  may  be  necessary  against  it,  but  none  was  neces- 
for   the   purposes  of  justice.     The  sary." 


CIlAl'.  I.]  GFNERAL   NATURE    OF    WKIT.  57 

court  of  last  resort  of  the  state  to  certain  specified  cases,  not 
including-  injunctions,  and  provides  that  in  all  other  cases  its 
jurisdiction  shall  be  appellate  only,  it  will  not  entertain  an 
action  for  the  granting  of  an  injunction.-'''  And  the  juris- 
diction of  the  court  being  thus  limited  and  defined  by  the 
constitution,  original  jurisdiction  can  not  be  conferred  upon 
it  over  matters  of  injunction  by  an  act  of  legislature.^*  Where, 
however,  the  power  of  granting  injunctions  is  by  the  consti- 
tution of  a  state  expressly  conferred  upon  the  supreme  court 
of  the  state  as  a  branch  of  its  original  jurisdiction,  the  dis- 
position is  to  limit  its  exercise  to  cases  puhlici  juris  and  not 
to  extend  relief  in  cases  of  merely  private  right  or  affecting 
only  private  parties.^^'  Consequently  the  writ  will  not  be 
granted  at  the  instance  of  a  private  individual  but  only  upon 
an  information  filed  by  the  attorney-general  in  the  name 
and  upon  behalf  of  the  state.^*^  And  it  is  not  regarded  as 
sufficient  to  set  in  motion  such  original  jurisdiction  that  the 
matter  is  puhlici  juris,  but  it  should  also  be  one  which  affects 
the  sovereignty  of  the  state,  its  franchises  or  prerogatives,  and 
one  in  which  the  interest  of  the  state  is  primary  and  not  re- 
mote. And  the  restraining  of  local  municipal  taxation  is  not 
of  such  public  importance  in  this  sense  as  to  set  in  motion 
the  original  jurisdiction  of  the  court.  But  the  obstruction 
of  a  navigable  river  within  the  limits  of  the  state  is  a  pur- 
presture  or  public  nuisance  of  such  a  nature,  and  so  directly 
concerning   the   sovereign  prerogative   of   the   state   and   the 

■•^■■i  Campbell  v.  Campbell,  22  111.,  Cunningham,  82  Wis.,  39,  51  N.  W., 

664;    Bryant  v.  The  People,  71  111.,  1133;     State    v.     Cunningham,    83 

32.  Wis.,  90,  53  N.  W.,  35,  17  L.  R.  A., 

■•!*  Campbell  v.  Campbell,  22  111.,  145,  35  Am.  St.  Rep.,  27;     State  v. 

664.  Morau,  24  Mont.,  433,  63  Pac,  390. 

^•'■>  See  Attorney-General    v.    The  And     see    Clark    v.     Borough      of 

Railroad  Companies,  35  Wis.,  425;  Washington.   145   Pa.   St.,    566,    23 

Attorney-General   v.   City    of    Eau  Atl.,  333;     Bruce  v.  Pittsburg,  161 

Claire,  37  Wis.,  400;    State  v.  Cun-  Pa.  St.,  517,  29  Atl.,  584. 

ningham,  81   Wis.,  440,  51   N.  W.,  •''"  Anderson  v.  Gordon.  9  N.  Dak., 

724,     15    L.    R.    A.,     561;     State   v.  480,  83  N.  W.,  993,  52  L.  R.  A.,  134. 


58  INJUNCTIONS.  [CIIAI'.  J. 

prerogative  jurisdiction  of  the  supreme  court  of  the  state 
under  the  constitution,  as  to  warrant  the  exercise  of  its  orig- 
inal jurisdiction  to  enjoin  such  obstruction.^^  So  the  matter 
of  the  qualification  of  the  members  of  a  state  legislature  and 
the  legality  of  their  election  involves  questions  of  such  public 
concern  and  so  closely  aftects  the  sovereignty  of  the  state  as 
to  warrant  the  supreme  court  in  entertaining  an  original  ap- 
plication for  an  injunction  to  restrain  the  secretary  of  state 
from  publishing  notices  of  an  election  of  state  senators  under 
a  reapportionment  act  upon  the  ground  of  the  alleged  uncon- 
stitutionality of  the  act.^^  And  it  is  held  under  the  constitu- 
tion of  Montana  that  the  writ  of  injunction,  as  granted  by 
the  supreme  court  of  that  state,  is  a  jurisdictional  writ  and 
not  merely  a  writ  to  be  issued  in  cases  of  which  the  court, 
upon  other  grounds,  has  original  jurisdiction,  and  conse- 
quently, being  the  arm  with  which  the  court  is  equipped  to 
deal  with  all  judicial  questions  relating  to  the  sovereignty  of 
the  state,  its  franchises  or  prerogatives,  or  the  liberties  of  the 
people,  it  may  be  granted  to  enjoin  acts  which  infringe  politi- 
cal rights  as  distinguished  from  the  purely  property  rights 
with  which  alone  equity  is  concerned.^^  But  a  mere  public 
nuisance  as  such,  however,  aggravated,  which  in  no  way  effects 
the  sovereignty,  franchises  of  prerogatives  of  the  state,  affords 
no  ground  for  an  injunction  from  a  court  of  last  resort.'**^ 

§  43.    Restrictions  upon  jurisdiction  of  the  courts ;  prohibi- 
tion; powers  of  United  States  district  judge.    Where  the  cir- 

37  Attorney-General    v.     City    of  City  of  Mineral  Point,  34  Wis.,  181. 
Eau  Claire,  37  Wis.,  400.   See  State        •'«  State  v.  Cunningham,  81  Wis., 

V.  City  of  Eau  Claire,  40  Wis.,  533  440,  51  N.  W.,  724,  15  L.  R.  A.,  561; 

But  whether  the  power  of  grant-  State  v.  Cunningham,  83  Wis.,  90, 

ing  injunctions  as  thus  conferred  53  N.  W.,  35,  17  L.  R.  A.,  145,  35 

upon  the  supreme  court  of  the  state  Am.  St.  Rep.,  27. 
be   considered    as  a  branch   of   its         -»  State  v.  Morau,  24  Mont.,  433, 

original  or  as  auxiliary  to  its  ap-  63  Pac,  390. 

pellate  jurisdiction,  it  will  not  be         '" /»   re   Hartung,    98   Wis.,   140, 

exercised    in     a    case     still     pend-  73  N,  W.,  988. 
ing  in   a  lower   court.     Cooper   v. 


CHAP.  I.]  GENERAL    NATURE    OF    WRIT.  59 

cuit  courts  of  a  state  have  under  their  organization  no  general 
chancery  jurisdiction,  their  equity  powers  being  special  and 
limited  and  not  including  the  power  to  grant  injunctions,  a 
statute  conferring  such  power  upon  a  circuit  judge  does  not 
authorize  the  court  as  such  to  grant  injunctions,  a  distinc- 
tion being  taken  in  that  regard  between  the  court  and  the 
judge.'^i  So  under  a  statute  enacting  that  in  all  cases  of 
breach  of  contract  the  plaintiff  in  an  action  at  law  may  pray 
and  have  an  injunction  against  a  repetition  or  continuance 
of  the  breach  of  contract,  the  statute  is  construed  not  to  con- 
fer general  chancery  povrers  upon  the  court  of  law,  but  only 
as  extending  to  that  court  the  remedy  by  injunction,  without 
authorizing  it  to  grant  other  e€[uitable  relief.^-  And  if  a 
court  of  equity  in  awarding  an  injunction  proceeds  without 
authority  or  jurisdiction,  a  writ  of  prohibition  will  lie  to 
prevent  further  proceedings  therein  by  such  court.'*^  But 
prohibition  will  not  lie  from  a  superior  to  an  inferior  court 
to  prevent  the  latter  from  proceeding  wdth  certain  injunc- 
tion suits  when  it  has  undoubted  jurisdiction  over  the  sub- 
ject-matter.'*^ And  it  has  been  held  that  a  district  judge  of 
the  United  States,  while  holding  the  circuit  court,  has  power 
to  grant  an  injunction  as  fully  as  the  circuit  judge  or  circuit 
justice  might  do ;  and  that  the  prohibition  of  section  714  of 
the  Revised  Statutes  of  the  United  States,  providing  that  an 
injunction  shall  not  be  issued  by  a  district  judge  as  one  of 
the  judges  of  the  circuit  court  in  any  case  where  the  party 

41  Cummings  v.  Des  Moines,  W  inary  injunction  and  to  grant  the 

&    S.    W.   R.    Co.,     36    Iowa,    173.  writ.     United   States  v.  Louisville 

Where  all  the  regular  judges  em-  &  P.  C.  Co.,  4  Dill.,  601. 

powered  to  hold  a  circuit  court  of  42  Richmond  v.  Dubuque  &  S.  C. 

the   United   States   are   absent,   in-  11.  Co.,  33  Iowa,  422. 

eluding  the  justice  of  the  Supreme  43  Swinburn   r.   Smith,    15    West 

Court  of  the  United   States   allot-  Va.,  483. 

ted  to  that  circuit,  another  justice  -i^  State    v.    Judge    of    Superior 

of  the  Supreme  Court  has  jurisdic-  District  Court,  29  La.  An.,  360. 
tion  to  hear  a  motion  for  a  prelim- 


60 


INJUNCTIONS. 


[chap.  I. 


has  had  reasonable  time  to  apply  to  the  circuit  court  for 
the  writ,  only  limits  the  power  of  the  district  judge  in  vaca- 
tion, and  is  not  a  limitation  upon  his  power  when  sitting  as 
a  circuit  judge."*^ 

§  44.  Supreme  Court  of  Judicature  Act  in  Eng-land. 
Under  the  Supreme  Court  of  Judicature  Act  of  1873,  the  power 
of  granting  injunctions  under  the  English  practice  is  much 
enlarged,  being  extended  in  terms  to  all  cases  in  which  it 
shall  appear  to  the  court  to  be  just  or  convenient ;  and  the 
court  is  empowered  to  grant  the  relief  either  unconditionally 
or  upon  such  terms  as  shall  seem  just.^**  And  under  this 
statute  it  is  held  that  the  court  has  unlimited  power  to  grant 
an  injunction  in  any  case  in  which  it  would  be  right  and  just 
to  do  so;  but  what  is  right  or  just  must  be  determined,  not 
by  the  caprice  of  the  judge,  but  according  to  sufficient  legal 
reasons  and  upon  settled  legal  principles.^'^ 


45  Goodyear  Dental  Vulcanite 
Co.  V.  Folsom,  3  Fed.,  509. 

4«  Supreme  Court  of  Judicature 
Act,  August  5,  1873.  Subdivision  8 
of  section  25  enacts  as  follows:  "A 
mandamus  or  an  injunction  may 
be  granted  or  a  receiver  appointed 
by  an  interlocutory  order  of  the 
court  in  all  cases  in  which  it  shall 
appear  to  the  court  to  be  just  or 
convenient  that  such  order  should 
be  made;  and  any  such  order  may 
be  made  either  unconditional  or 
upon  such  terms  and  conditions  as 
the  court  shall  think  just;  and  if 
an  injunction  is  asked,  either  be- 
fore or  at  or  after  the  hearing  of 
any  cause  or  matter,  to  prevent 
any  threatened  or  apprehended 
waste  or  trespass,  such  injunction 
may  be  granted,  if  the  court  shall 
think  fit,  whether  the  person 
against  whom  such  injunction  is 
sought   is  or   is  not    in    possession 


under  any  c^aim  of  title  or  other- 
wise (or  if  out  of  possession)  does 
or  does  not  claim  a  right  to  do  the 
act  sought  to  be  restrained  under 
any  color  of  title;  and  whether  the 
estates  claimed  by  both  or  by 
either  of  the  parties  are  legal  or 
equitable." 

■i-!  Beddow  v.  Beddow,  9  Ch.  D.. 
89.  And  in  Day  v.  Brownrigg,  10 
Ch.  D.,  294,  Lord  Justice  James 
observes:  "I  think  it  is  right  to 
add  that  the  power  given  to  the 
court  by  sec.  25,  sub-sec.  8,  of  the 
Judicature  Act,  1873,  to  grant  an 
injunction  in  all  cases  in  which 
it  shall  appear  to  the  court  to  be 
'just  and  convenient'  to  do  so,  does 
not  in  the  least  alter  the  principles 
on  which  the  court  should  act." 
And  Lord  Jessel,  Master  of  the 
Rolls,  says:  "It  must  be  just  as 
well  as  convenient." 


—  CHAPTER  n. 

OF   INJUNCTIONS   AGAINST   ACTIONS   AT  LAW. 

I.     Grounds  of  the  Juuisuiction §  45 

II.     Defense  at  Law 8a 

III.  Suits  Pertaining  to  Real  Property 95 

IV.  Suits  in  Foreign  Courts lOiJ 

V.     State  and   Federal  Courts 108 

I,     Grounds  of  the  Jurisdiction. 

§  45.  Courts  not  enjoined,  but  only  parties. 

46.  Judge  not  enjoined;  judgment  not  void  because  of  injunction. 

47.  General  rule;   fraud,  accident  and  mistake;   illustrations. 

48.  Litigation  confined  to  original  forum. 

49.  Illustrations  of  the  rule. 

50.  Equity  will  not  interfere  with  court  first  acquiring  jurisdiction; 

illustrations. 

51.  Further  illustrations. 

52.  Proceedings  in  court  of  equity  not  enjoined. 

53.  Exception  to  rule  in  actions  of  interpleader. 

54.  When  actions  at  law  growing  out  of  proceedings  in  equity  en- 

joined. 

55.  When  new  suit  in  equity  unnecessary. 

56.  Requisites  of  bill. 

57.  Parties;    officers  of   court  of  equity. 

58.  When   application  made   in   suit  pending. 

59.  Rule  as  to  confessing  judgment  at  law. 

60.  Limitations  upon  the  rule. 

61.  Bill  of  peace. 

62.  Distinction  between  bill  of  peace  and  action  to  consolidate. 

63.  Multiplicity  of  suits  enjoined. 
63o.  The  same. 

64.  Fears  of  future  actions  insufficient;   injunction  not  allowed  to 

prevent   injunction;    not  allowed   because  of   unconstitutional 
statute. 

65.  Multiplicity  of  suits  further  defined. 
65a.  The  same. 

66.  Injunction  allowed  where  defense  can  not  be  made  at  law;  in- 

equitable defenses  enjoined. 
61 


62  INJUNCTIONS.  [chap.  II. 

§  67.     Failure  of  consideration  as  ground  for  enjoining  suit. 

68.  Criminal  proceedings  not  enjoined;  nor  mandamus;  exceptions. 

69.  Suit  on  fraudulent  foreign  judgment  enjoined;   remedy  at  law 

defined. 

70.  Unconscionable   bargains   with   expectant   heirs;    gambling  con- 

tracts. 

71.  Actions   to    recover   penalty   formerly   enjoined;    bond   for   pur- 

chase of  office. 

72.  Solicitor  enjoined  from  acting  in  adverse  capacity. 

73.  Suits   against   receivers,   when   enjoined. 

74.  Suits  against  infants,  when  enjoined. 

75.  Landlord  and  tenant. 

76.  Usurious  contracts. 

77.  Attachment   suits. 

78.  Awards  and  arbitrators. 

79.  Change  of  venue;  absence  of  witness;  statute  of  limitations. 

80.  Bond  for  purchase  money. 

81.  Proceedings  under  United  States  revenue  laws  rarely  enjoined. 

82.  Trust;   insolvency  of  maker  of  note. 

83.  Effect  of  the  injunction;   mandamus  not  allowed. 

84.  Acceptance  of  goods  from  debtor;   fraudulent  decree;   imprison- 

ment for  debt. 

85.  Dismissal  of  suit,  when  enjoined;  lost  agreement. 

86.  Garnishees. 

87.  Effect  of  the  injunction  on  statute  of  limitations. 

88.  Effect  of  dissolving  the  injunction. 

§45.  Courts  not  enjoined,  but  only  parties.  No  branch 
of  the  jurisdiction  of  equity  by  injunction  is  so  frequently 
invoked  as  that  which  pertains  to  the  restraint  of  judicial 
proceeding's,  either  before  or  after  judgment.  In  the  exer- 
cise of  this  jurisdiction  courts  of  equity  claim  no  supremacy 
over  courts  of  law,  since  the  injunction  is  in  no  sense  a 
prohibition  upon  the  action  of  the  legal  tribunal.  The  in- 
junction is  directed,  not  to  the  court,  but  to  the  litigant  par- 
ties, and  in  no  manner  denies  the  jurisdiction  of  the  legal  tri- 
bunal.' It  merely  seeks  to  control  the  person  to  whom  it  is 
addressed,  and  to  prevent  him  from  using  the  process  of  courts 
of  law  where  it  would  be  against  conscience  to  allow  him  to 
proceed.     It  is  granted  on  the  ground  that  an  unfair  use  is 

1  Burke  v.  Ellis,  105  Tenn.,  702,    58  S.  W.,  855. 


CHAP.  II.]  ACTIONS  AT    LAW.  63 

being  made  of  the  legal  forum,  which,  from  circumstances 
of  which  equity  alone  can  take  cognizance,  should  be  re- 
strained lest  an  injury  be  committed  wholly  remediless  at  law.^ 
And  the  power  of  courts  of  equity  to  restrain  the  assertion 
of  doubtful  rights  in  a  manner  productive  of  irreparable  dam- 
age, and  to  prevent  injury  to  a  person  from  the  doubtful  title 
of  another,  is  regarded  as  one  of  the  legitimate  functions  of 
equity.^ 

§46.  Judge  not  enjoined;  judgment  not  void  because  of 
injunction.  As  already  indicated  the  jurisdiction  of  equity  in 
restraint  of  actions  at  law  is  exercised,  not  over  the  courts 
of  law,  but  only  upon  the  parties  litigant  therein.  And  a 
court  of  equity  is  devoid  of  jurisdiction  to  grant  an  injunc- 
tion against  the  judge  of  another  court  to  restrain  him 
from  acting  in  or  making  orders  in  a  particular  cause. 
Every  judge  is  supreme  and  independent  in  his  own  sphere, 
and  can  not  be  restrained  in  the  discharge  of  his  functions 
by  the  process  of  injunction.  While,  therefore,  equity  may 
in  proper  cases  enjoin  suitors  in  another  court  from  pro- 
ceeding with  their  cause,  the  injunction  can  not  operate 
upon  or  run  against  the  judge  of  such  court."*  And  since 
the  injunction  is  not  operative  upon  the  court,  but  only  upon 
the  party  litigant  to  whom  it  is  directed,  if  the  court  in 
which  the  action  enjoined  is  pending  has  jurisdiction  of  the  sub- 
ject and  of  the  parties,  its  judgment  will  not  be  held  void  be- 
cause   of    an    injunction    restraining    the  prosecution  of  the 

2  2  story's  Eq.,  §875;  Hill  v.  doctrine;  and  it  may  be  regarded 
Turner,  1  Atk.,  516;  Tyler  v.  Ham-  as  the  well  settled  practice  of 
ersley,  44  Conn.,  419.  In  Williams  courts  of  equity  to  interfere,  on 
V.  Sadler,  4  Jones  Eq.,  378,  it  is  proper  cause  shown,  at  any  stage 
held  that  the  ordinary  and  usual  of  the  proceedings,  without  wait- 
course  is  to  allow  proceedings  as  ing  for  judgment  to  be  had. 
far  as  judgment,  and  to  interfere  '-^  Hen  wood  v.  Jarvis,  12  C.  E. 
only  for  the  purpose  of  enjoining  Green,   247. 

the  execution.     I  am  not  aware  of        ■*  Sanders  v.  Metcalf,  1  Tenn.  Ch., 

any   other   authority   holding   this  419. 


64  INJUNCTIONS.  [chap.  II. 

cause.-'"'  Thus,  iu  New  York,  where  law  and  equity  jurisdic- 
tion are  both  administered  by  one  and  the  same  tribunal, 
it  is  held  that  a  judge  holding  a  law  court  is  not  divested 
of  his  jurisdiction  to  proceed  with  actions  pending  therein 
because  another  judge  of  the  same  court  has,  in  the  exercise 
of  his  equity  powers,  enjoined  the  proceedings  at  law.*^ 

§  47.  General  rule ;  fraud,  accident  and  mistake ;  illustra- 
tions. In  general  it  may  be  said  that  where  through  fraud, 
accident  or  mistake  such  an  advantage  will  be  gained  in  a 
suit  at  law  as  will  render  it  an  instrument  of  great  injustice, 
and  it  is  against  conscience  to  allow  the  suit  to  proceed,  equity 
will  interfere  by  injunction."  Thus,  a  suit  on  an  indemnity 
bond  has  been  enjoined  where  it  had  been  given  through 
mistake,  the  obligor  supposing  he  was  signing  a  recognizance.* 
And  where  the  contract  on  which  a  suit  is  brought  was  en- 
tered into  on  mistaken  and  false  representations,  the  pro- 
ceedings may  be  enjoined.''  So  a  suit  upon  promissory  notes 
is  properly  enjoined  where  it  appears  that  the  notes  were  given 
in  exchange  for  an  interest  in  certain  other  notes  which  had 
been  obtained  through  fraudulent  representations  in  a  sale 
of  patent-rights.^*^  And  where  fraud  is  relied  upon  as  the 
ground  for  relief,  it  is  not  necessary  that  the  facts  should 
be  proved  precisely  as  alleged,  but  it  will  be  sufficient  if 
they  are  proved  in  substance.^  ^  So  undue  influence  exercised 
upon  the  maker  of  a  note,  who  was  a  person  of  weak  intellect 
and  constantly  given  to  intoxication,  has  been  deemed  suf- 
ficient ground  for  restraining  a  suit  upon  the  note.^^  But 
fi-audulent  representations  made  by  the  payee  to  the  maker 

•  Piatt   V.    Woodruff,     61     N.    Y.,  «  Field  v.  Cory,  3  Halst.  Ch.,  574. 

378.  !'  Dale  v.  Roosevelt,  5  Johns.  Ch., 

'••  Id.  174. 

'  2  Story's  Eq.,  §  885;   Sackett  i'.  '"  Sackett    v.    Hillhouse,    5    Day, 

Hillhouse,     5     Day,     551;    Dale    v.  551. 

Roosevelt,  5  .Johns.  Ch..  174;  Fiel'.l  'i  Id. 

V.  Cory,  3  Halst.  Ch..  574.  i-'  Rembert    v.    Brown,     17     Ala., 

667. 


CHAP.  II.] 


ACTIONS  AT    LAW. 


65 


of  a  promissory  note  will  uot  warrant  an  injunction  against 
a  suit  by  a  bona  fide  holder  of  the  note  for  valuable  con- 
sideration.^^  Nor  will  the  prosecution  of  a  writ  of  error  to  a 
judgment  be  enjoined  because  of  mistakes  in  the  bill  of  ex- 
ceptions, no  fraud  being  shown.^^  The  injunction  will  be  dis- 
solved where  the  answer  fully  disproves  the  allegations  of 
fraud,  and  shows  a  bona  fide  debt  and  full  consideration,  it 
not  appearing  that  the  suits,  though  several  in  number,  were 
vexatious  or  malicious.^'"'  And  to  warrant  the  interference, 
a  clearly  established  case  of  fraud,  accident  or  mistake  must 
be  shown,  sufficient  to  deprive  the  person  aggrieved  of  a  de- 
fense at  law.^**  The  loss  of  one  conveyance  in  a  chain  of 
title  is  sufficient  to  warrant  equity  in  enjoining  proceedings 
at  law  to  get  possession  of  the  premises,  as  well  on  the 
ground  of  accident  whereby  a  defense  can  not  be  perfectly 
made  at  law,  as  from  the  necessity  of  preventing  a  cloud 
upon  title.^^ 


i:'  Dougherty  v.  Scudder,  2  C.  E. 
Green,  248. 

14  Ford  V.  Weir,  24  Miss.,  563. 

15  Jackson  v.  Darcy,  Saxt.,  194. 

16  Rogers  v.  Cross,  3  Chand.,  34. 

17  Butch  V.  Lash,  4  Iowa,  215. 
But  see,  contra,  Rogers  v.  Cross,  3 
Chand.,  34.  Butch  v.  Lash  illus- 
trates very  clearly  some  of  the 
grounds  upon  which  equity  will 
interpose  to  stay  proceedings  at 
law.  Complainant  in  the  injunc- 
tion suit  being  sued  at  law  for  the 
recovery  of  certain  real  estate,  and 
his  chain  of  title  being  defective, 
one  deed  therein  having  been  lost 
before  recorded,  the  court  below 
decreed  a  perpetual  injunction 
against  the  proceedings  at  law. 
The  decree  was  affirmed  by  the  ap- 
pellate court,  Wright,  C.  .J.,  say- 
ing: "The  respondent's  action 
was  brought  to  test  the  legal  title 

5 


to  this  property,  and  in  the  legal 
forum  he  was  entitled  to  succeed, 
if  his  title,  in  this  respect,  was 
superior  to  that  of  complainant. 
Owing  to  the  loss  and  failure  to  re- 
cord the  deed  to  Linder,  com- 
plainant was  unable  to  show  a 
complete  chain  by  the  title  papers 
or  record;  and,  under  such  cir- 
cumstances, we  think  he  was  fully 
justified  in  asking  equitable  aid  to 
ascertain  the  existence  of  such 
deed.  We  can  not  say  that  his 
defense  would  have  been  adequate 
and  complete  at  law.  But  a  fur- 
ther and  conclusive  consideration 
in  favor  of  the  bill  is  that  com- 
plainant asked  equitable  interpo- 
sition on  the  ground  of  accident, 
and  to  remove  a  cloud  upon  his 
title.  To  relieve  against  an  injury 
resulting  from  accident  is  a  very 
ancient  branch  of  equitable  juris- 


66  INJUNCTIONS.  [chap.  II. 

§  48.  Litigation  confined  to  original  forum.  The  propriety  *■ 
of  confining  litigation  to  the  forum  in  which  it  is  first  com- 
menced has  repeatedly  been  recognized  by  courts  of  equity, 
and  an  injunction  will  generally  be  allowed  to  prevent  either 
party  from  removing  the  litigation  into  another  court.^^ 
Especially  will  the  jurisdiction  be  exercised  to  restrain  one 
from  the  removal  of  his  cause  after  an  adverse  decision  in 
the  court  to  which  he  had  first  resorted.^  ^  Nor  is  the  ap- 
plication of  the  rule  affected  by  the  fact  that  the  court  sub- 
sequently acquiring  jurisdiction  of  the  subject-matter,  and 
in  which  the  proceedings  are  sought  to  be  enjoined,  has  equity 
as  well  as  common  law  powers. ^^  In  all  such  cases  the  parties 
will  be  left  to  contest  their  rights  in  the  original  forum,  since 
any  other  rule  would  necessarily  lead  to  great  abuse  and 
render  chancery  an  instrument  of  great  injustice.-^ 

§  49.  Illustrations  of  the  ride.  Illustrations  of  the  rule 
as  above  stated  are  frequent,  but  they  are  all  based  upon 
the  propriety,  and  indeed  the  necessity,  of  confining  litiga- 
tion to  the  tribunal  in  which  it  is  first  instituted.  And  where 
the  subject-matter  of  a  litigation  is  already  pending  in  equity, 
and  it  has  full  and  complete  jurisdiction  and  ample  power 
to  afford  relief,  it  will  not  permit  the  litigation  to  be  trans- 
ferred to  another  forum,  and  will  by  injunction  prevent  a 
party  to  the   cause  from  afterward  proceeding  in  an  action 

diction.     .     .     .     The  loss  of  the  is  Conover  v.   Mayor,    25    Barb., 

deed    is    expressly    shown    by    the  531;  Crane   v.    Bunnell,   10    Paige, 

complainant's  sworn  bill;   there  is  333.      See  also   Horn   v.   Kilkenny 

no  pretense  that  it  occurred  from  R.  Co.,  1  Kay  &  J.,  399;     Hadfleld 

any    negligence   or   misconduct  on  v.  Bartlett,  66  Wis.,  634;   29  N.  W., 

his  part.     The  respondent  had  pro-  639. 

cured     a     conveyance     from      the  i»  Conover    v.    Mayor,    25    Barb,, 

county,   which    was  a   cloud   upon  531. 

complainant's  title;    and  to  avoid  20  id. 

the  effect  of  this  loss,  and  remov-,  -1  Crane    v.    Bunnell,    10   Paige, 

this   cloud,    he    might    reasonably  333. 

and     properly    ask    relief    at  the 

hands  of  the  chancellor." 


CHAP.  II.]  ACTIONS  AT    LAW.  67 

at  law  concerning  the  same  subject-matter.  Thus,  pending 
a  bill  in  equity  to  enforce  specific  performance  of  a  contract 
to  convey  lands,  the  court  may  enjoin  the  defendant  in  that 
action  from  suing  at  law  to  recover  damages  for  a  breach  of 
the  same  contract.-^  So  where  proceedings  in  equity  have 
gone  so  far  as  to  reach  a  decree  for  an  accounting,  the  court 
will  enjoin  the  plaintiff  in  that  action  from  proceeding  at  law 
touching  the  same  matter."^  So  creditors  of  a  railway  com- 
pany, who  have  taken  proceedings  against  it  in  a  state  court 
to  enforce  a  statutory  lien  for  labor  performed  in  the  con- 
struction of  the  road,  having  invoked  the  jurisdiction  of 
that  court  and  submitted  their  rights  to  its  decision,  may 
be  enjoined  from  instituting  proceedings  in  bankruptcy 
against  the  company,  to  the  great  prejudice  and  damage  of 
other  creditors,  when  they  may  have  full  and  complete  justice 
in  the  original  suit.^^  And  it  is  to  be  observed  that,  in  cases 
of  this  nature,  the  court  of  equity  having  already  jurisdiction 
of  the  subject-matter  and  of  the  parties  to  the  cause,  it  is 
not  necessary  that  a  new  action  should  be  begun  for  the  pur- 
pose of  obtaining  the  preventive  relief  which  is  sought.  And 
M'here,  after  instituting  his  action  in  equity,  complainant  sues 
at  law  concerning  the  same  matter,  he  may  be  enjoined  from 
proceeding  at  law  merely  upon  motion  of  defendant  in  the 
original  suit.^^  But  the  fact  that  a  bill  in  equity  is  pending 
in  another  state  concerning  the  same  subject-matter  affords 
no  ground  for  enjoining  a  suit  at  law,  even  though  the  parties 
to  the  action  at  law  are  also  parties  to  the  suit  in  equity  in 
the  foreign  state.^* 

?  50.     Equity  will  not  interfere  with  court  first  acquiring 
jurisdiction;  illustrations.     While  courts  of  equity,  as  is  thus 

22  Blakeney    v.    Hardie,   I.   R.   7  25  Wilson      v.      Wetherherd,      2 
Eq.,  472.  Meriv.,  406. 

23  Mocher  v.  Reed,  1   Ball  &  B.,  26  insurance  Company  v.  Brune's 
318.  Assignee,  6  Otto,  588. 

2*  Pusey  V.  Bradley,  1  Thomp.  & 
C,  661. 


68  INJUNCTIONS.  [chap.  II. 

shown,  are  averse  to  permitting  their  jurisdiction,  when  it 
has  once  attached,  to  be  usurped  by  other  tribunals,  they  will 
not,  upon  the  other  hand,  interfere  with  proceedings  in  other 
courts  of  competent  jurisdiction  which  have  first  acquired 
control  over  the  subject-matter  and  the  controversy,  or  with 
the  proceedings  of  courts  of  special  and  peculiar  jurisdiction 
created  for  particular  purposes  or  with  special  and  peculiar 
powers.-'^  And  where  the  jurisdiction  of  courts  of  law  and 
equity  is  concurrent  over  the  subject  in  controversy,  and 
the  court  of  law  has  first  acquired  jurisdiction  by  an  action 
brought  in  that  forum,  equity  will  refuse  to  enjoin  the  ac- 
tion at  law  when  there  is  no  obstacle  to  obtaining  complete 
relief  in  that  proceeding.-^  So  where  an  application  is  prop- 
erly pending  in  a  probate  court  for  a  new  trial  in  a  pro- 
ceeding for  the  probate  of  a  will  which  has  been  refused  by 
the  court,  equity  will  not  entertain  a  bill  to  enjoin  the  parties 
from  further  litigating  in  the  probate  court,  but  will  leave 
that  tribunal  to  proceed  with  and  determine  the  application 
for  a  new  trial.^^  And  where  a  question  as  to  the  disposition 
of  lands  of  an  intestate  is  pending  in  the  proper  court  of 
probate,  which  has  full  jurisdiction  in  the  premises,  and 
from  whose  orders  the  right  of  appeal  exists,  equity  will  not 
enjoin  one  claiming  a  share  in  the  estate  from  asserting  his 
rights  in  that  proceeding,  but  will  leave  the  question  to  be 
determined  by  the  probate  court.'^*^  Nor  will  a  court  of  equity 
interfere  b}'  injunction  with  the  action  of  a  court-martial, 
which  is  invested  by  the  laws  of  the  state  with  jurisdiction 

-<  Johnston    v.    Young,    I.    R.    10  ecutor   in  trust,    would     enjoin    a 

Eq.,    403;     Kinney     v.     Redden,    2  suit  in  the  ecclesiastical  court  for 

Del.  Ch.,  44;     Morgan  v.  Morgan's  a  legacy,  notwithstanding  theorig 

Adm'r,     50    Ala.,     89;     Perault    v.  inal   jurisdiction   of   that  court   in 

Rand,  10  Hun,  222.  legacies,    the    relief  heing   allowed 

-''.Johnston  v.  Young,    I.    R.    10  upon  the  ground   that  trusts  were 

Eq.,  403.  properly  cognizable  only  in  equity. 

-'■>  Morgan  v.  Morgan's  Adm'r,  .50  Anon.,   1    Atk.,  491. 

Ala.,    89.      But   the   English   Court  -"  Kinney  v.  Redden,  2  Del.  Ch., 

of  Chancery,  upon  a  bill  by  an  ex-  44. 


CHAP.  II.]  ACTIONS  AT    LAW.  69 

over  military  offenses,  since  the  orderly  administration  of 
the  law  requires  that  the  person  against  whom  proceedings  are 
instituted  should  assert  his  defense  in  the  tribunal  having 
jurisdiction  over  the  matters  in  controversy .-'^  But  an  in- 
junction has  been  granted  to  stay  proceedings  in  a  court  of 
admiralty  upon  the  ground  of  newly  discovered  evidence,  dis- 
covered at  a  stage  of  the  proceedings  when,  by  the  rules  of 
the  admiralty  court,  no  new  evidence  could  be  received."^^ 

§  51.  Further  illustrations.  Ui)on  principles  similar  to 
those  which  have  been  above  discussed  and  illustrated  it  is 
held  that  where  the  rights  of  complainant,  upon  which  he 
bases  his  application  for  an  injunction,  are  already  pending 
in  another  court  having  full  jurisdiction  of  the  matter  in- 
volved, and  that  litigation  has  proceeded  so  far  that  the  par- 
ties to  the  controversy  have  been  heard  and  only  await  an 
adjudication,  a  court  of  equity  will  not  assume  jurisdiction 
or  grant  an  interlocutory  injunction,  but  will  leave  complain- 
ant to  his  remedy  in  the  action  already  pending.^^  And  equity 
will  not  interfere  by  injunction  to  restrain  the  taking  out  of 
letters  of  administration  in  the  probate  court  when  the  con- 
troversy concerning  the  administration  of  the  estate  can  be 
properly  determined  there,  and  when  the  court  of  equity  itself 
has  no  power  to  grant  administration.^-*  And  the  English 
Court  of  Chancery,  at  an  early  day.  refused  an  injunction 
upon  a  bill  to  set  aside  a  will  of  personal  estate  for  fraud 
upon  the  ground  that  the  spiritual  court  had  jurisdiction  of 
the  controversy .•'•'* 

§  52.  Proceedings  in  court  of  equity  not  enjoined.  It  is 
also  a  well  established  rule  pertaining  to  that  branch  of  the 
jurisdiction  of  equity  under  discussion,  that  an  injunction  will 

:"  Perault  r.  Rand.  10  Him,  222.  ■■*  Wilcocks    v.   Carter,    L.    R.    10 

32Jarvis   v.   Chandler,    Turn.    &  Ch.,   440. 

R-,  319.  ^r,  stephenton   v.   Gardiner.    2   P. 

•■!3  New  Jersey  Z.  Co.  v.  Franklin  Wms.,    286.      As     to     the     circum- 

Iron  Co.,  29  N.  J.  Eq.,  422.  stances    under    which    a   court  of 


70  INJUNCTIONS.  [chap.  II. 

not  be  granted  to  stay  proceedings  in  the  same  court  of 
equity,  either  upon  the  application  of  parties  to  the  proceed- 
ings sought  to  be  enjoined,  or  of  strangers  to  such  proceed- 
ings, since  a  departure  from  the  rule  would  lead  to  intermin- 
able litigation.3^  A  court  of  equity  will  not,  therefore,  en- 
join the  prosecution  of  another  bill  in  equity,  or  stay  pro- 
ceedings in  another  equitable  action  in  the  same  court,  when 
no  reason  is  sho-\\Ti  why  the  party  aggrieved  can  not  protect 
himself  by  interposing  his  defense  in  the  former  suit,  since 
the  defendant  in  the  original  suit  can  ordinarily  avail  him- 
self of  all  his  equities  and  defenses  with  full  effect  in  that 
action.2'^ 

§  53.  Exception  to  rule  in  actions  of  interpleader.  While, 
as  is  thus  sllo^\^l,  a  court  of  equity  will  not  ordinarily  inter- 
fere by  injunction  with  proceedings  in  another  cause  in 
equity,  an  exception  to  the  rule  is  recognized  in  actions  of 
interpleader,  growing  out  of  the  peculiar  nature  of  such  ac- 
tions and  the  necessity  of  drawing  the  entire  litigation  into 
the  one  principal  action.  And  where  in  a  bill  of  interpleader 
one  of  the  defendants  is  suing  plaintiff  in  equity,  and  another 
is  proceeding  against  him  in  an  action  at  law,  it  is  proper 
to  enjoin  the  proceedings  both  in  equity  and  at  law.^^  And 
when  an  interlocutory  injimction  is  obtained  in  an  action  of 

equity   may  enjoin   proceedings   in  it  is  held  in  Minnesota  that  an  in- 

a  surrogate's  court,  under  the  New  junction   may  be  granted    in    one 

Ycrrk  practice,  in  behalf  of  an  ad-  equitable   action    to    restrain   pro- 

ministrator,   see   Wright   v.   Flem-  ceedings   in   another   equitable  ac- 

Ing,  76  N.  Y.,  517.  tion  pending   in   the    same    court, 

36  Smith     V.     American     Co.,     1  when  the  party  aggrieved  can  not 

Clarke   Ch.,    307;     Lane   v.    Clark,  have  full  and  adequate    relief    by 

lb.,   310;     Redd    v.    Blandford,    54  intervening   in    the    original   suit. 

Ga.,  123;    Dayton  v.  Relf,  34  Wis.,  Mann  v.   Flower,  26  Minn.,  479;    5 

86.    And  see  Schell  v.  Erie  R.  Co.,  N.  W.,  365. 

51  Barb.,  368;    Erie  R.  Co.  v.  Ram-  •>«  Crawford   v.   Fisher,   10   Sim., 

sey,    57    Barb.,    449;      Jackson   v.  479;     Prudential  Assurance  Co.  v. 

Leaf.  1  Jac.  &  W.,  229.  and  notes.  Thomas,    L.   R.     3     Ch.     App.,    74; 

•TT  Redd  V.  Blandford,  54  Ga.,  123;  Warington     v.     Wheatstone,     Jac, 

Dayton  v.   Relf.  34  Wis..   86.     But  202. 


CHAP.  II.]  ACTIONS  AT    LAW.  71 

interpleader  to  restrain  further  proceedings  at  law,  and  there 
appears  to  be  a  serious  question  to  be  determined  upon  the 
hearing,  it  is  proper  to  continue  the  injunction  until  the  final 
hearing.^^ 

§  54.  When  actions  at  law  growing  out  of  proceedings  in 
equity  enjoined.  Courts  of  equity  are  disinclined  to  permit 
their  proceedings  to  be  called  in  question  by  courts  of  law, 
and  it  has  been  held,  where  actions  at  law  were  brought  by 
one  complaining  of  the  execution  of  process  from  the  court 
of  chancery,  that  an  injunction  might  properly  issue  to  re- 
strain the  prosecution  of  the  actions  at  law.'*^  Where,  how- 
ever, an  action  at  law  for  damages  for  false,  imprisonment 
is  brought  for  having  irregularly  issued  an  attachment  in  a 
chancery  proceeding,  equity  will  not  restrain  the  parties  from 
proceeding  at  law,  although  they  are  subject  to  the  jurisdic- 
tion of  the  court,  if  serious  and  substantial  injury  has  been 
sustained.^i 

§  55.  When  new  suit  in  equity  unnecessary.  In  the  exer- 
cise of  its  jurisdiction  to  restrain  proceedings  at  law  a  court 
of  equity  usually  requires  that  a  bill  should  be  filed,  or  an 
independent  suit  instituted  for  the  purpose  of  obtaining  re- 
lief by  injunction.  This  course  is,  however,  unnecessary  when 
a  suit  in  equity  is  already  pending  in  which  the  necessary 
relief  may  be  had.  And  where  a  bill  for  an  injunction  against 
an  action  at  law  discloses  the  pendency  of  a  prior  suit  in 
equity  pertaining  to  the  same  subject-matter,  and  in  which 
the  relief  sought  by  injunction  in  the  new  suit  might  have 
been  obtained  by  motion  or  petition  in  the  cause,  an  injunc- 
tion granted  in  the  second  cause  will  be  regarded  as  impro- 
vidently   allowed,   and  will  be   accordingly   dissolved.'*^ 

39  Cochrane  v.  O'Brien,  6  Ir.  Eq.,  •*!  McKinnon  v.  Palmer,  7  Ir.  Eq.,' 
312.  496. 

40  Walker  v.  Mlcklethwait,  1  «  Washington  v.  Emery,  4  Jones 
Drew.  &  Sm.,   49.  Eq.,   29. 


72  IXJUXCTIOXS.  [chap.  11. 

§  56.  Requisites  of  bill.  The  bill  should  show  the  precise 
state  of  the  pleadings  in  the  suit  which  it  is  sought  to  en- 
join, as  well  as  the  court  in  which  the  suit  is  pending,  to 
enable  the  officer  granting  the  injunction  to  judge  of  its  pro- 
priety and  to  fix  the  terms  upon  AA'hich  the  relief  will  be  al- 
lowed.^2  And  if,  in  addition  to  the  prayer  for  injunction,  the 
bill  prays  for  a  discovery  of  matters  material  to  the  defense 
of  the  suit  at  law,  the  nature  of  the  defense  at  law  must 
clearly  appear  in  the  bill  before  equity  w^ill  enjoin  the  suit."*^ 
So,  also,  in  addition  to  the  nature  of  the  suit  and  the  court  in 
which  it  is  pending,  the  bill  should  show  the  date  when  it  was 
begun,  the  various  steps  taken  in  the  cause,  and  especially 
the  defenses  made,  if  any,  and  all  the  facts  necessary  to  show 
that  injustice  would  be  done  complainant,  or  that  he  would 
be  deprived  of  some  legal  or  equitable  right,  if  his  adversary 
were  permitted  to  proceed  to  judgment  at  law.-*^ 

§  57.  Parties ;  officers  of  court  of  equity.  As  regards  the 
parties  for  and  against  whom  the  jurisdiction  Avill  be  exer- 
cised, it  is  to  be  remarked  that  an  injunction  will  not  be 
granted  in  aid  of  a  suit  against  one  not  a  party  to  the  suit.^*^ 
Nor  will  the  relief  be  allowed  in  behalf  of  one  not  a  party 
to  the  suit  sought  to  be  enjoined.^"  But  the  jurisdiction  of 
chancery  to  restrain  suits  at  law  against  its  officers  acting 
under  its  direction  is  old  and  well  established,  and  will  be 
exercised  even  though  the  parties  by  whom  the  proceedings 
at  law  are  instituted  are  not  parties  to  the  suit  in  chancery.'*'* 
And  where  one  has  instituted  a  suit  in  the  name  of  another, 

^•■'  Carroll      v.      Farmers     &     M.  ■»(.  Chamblin  r.  Slichter,  12  Minn., 

Bank,     Harring.       (Mich.),      197;  276. 

Chadwell    v.   Jordan,   2   Tenn.   Ch.,  ^^  New    York     r.    Connecticut,    1 

63.5.  Ball.,   1. 

^•Molntire  v.  Mancius,  3  .Johns.  ^m  Bailey    v.    Devereux,    1    Vern., 

Ch.,  45.  269;     Frowd  f>.  Lawrence,  1  Jac.  & 

^••Chadwell    r.    .Jordan,    2   Tenn.  W.,  655;   Ex  parte  Clarke,  1  Russ. 

Ch.,   635.  &   M.,  563. 


CHAP.  II. J  ACTIONS  AT    LAW.  .  73 

but  without  his  consent  and  without  authority,  either  legal 
or  equitable,  the  proceedings  may  be  enjoined.^'' 

§  58.  When  application  made  in  suit  pending.  Where  it 
is  sought  to  stay  or  enjoin  proceedings  in  equity  by  one  who 
is  a  party  or  privy  to  the  proceedings,  the  application  should 
be  made  directly  to  the  court  itself  in  the  action  pending, 
and  an  officer  outside  of  court  has  no  authority  to  enjoin  such 
proceedings.^^ 

§  59,  Rule  as  to  confessing  judgment  at  law.  It  has  been 
frequently  held  that  one  who  comes  into  equity  for  relief 
against  proceedings  at  law,  and  who  seeks  to  enjoin  such 
proceedings,  will  be  granted  relief  only  upon  condition  of 
his  first  confessing  judgment  at  law.''^  The  principle  upon 
which  the  rule  is  based  is  said  to  be  that  whenever  a  person 
resorts  to  equity  for  substantive  relief  against  a  claim  as- 
serted at  law  he  must  submit  himself  entirely  and  without 
reserve  to  the  jurisdiction  of  the  chancellor.^2  ^i^^  rule, 
however,  if  rule  it  may  be  called,  is  by  no  means  inflexible ; 
and  where  one  has  a  distinct  ground  of  equitable  relief  aside 
from  his  defense  at  law,  he  is  not  obliged  to  abandon  his  legal 
defense  by  confessing  judgment  before  proceeding  in  equitj' 
to  enjoin  the  suit  at  law.^^  But  where  complainant  in  his  bill 
expressly  offers  to  withdraw  his  defense  at  law  and  submit 
to  judgment,  for  the  reason  that  his  relief  is  alone  in  equity, 
he  is  entitled  to  an  injunction.'"-* 

§  60.  Limitations  upon  the  rule.  The  better  doctrine  un- 
doubtedly is  that  the  question  of  requiring  a  defendant  at 
law,  who  seeks  upon  equitable  grounds  to  enjoin  the  action 

^^  Ex  parte  Merrit,  5  Paige,  125.  dan,  2  Tenn.  Ch.,  635;    Haynes  v. 

•'i"  Dyckman     v.     Ke'-nochan,      2  Bank,    106    Tenn.,   425,   61    S.   W.. 

Paige,  26;     Ellsworth    v.    Cook,    8  775. 

Paige,    643.  ^•-  Warwick  r.  Norvell,  1   Leigh. 

•'•1  Warwick  v.  Noi-vell,   1   Leigh.  96. 

96;     Mathews   v.    Douglass,    Cooke  "^^  Warwick    v.   Norvell,     1     Rob. 

(Tenn.),  136;     Conway  v.  Ellison,  (Va.),     308;      Dudley    v.     Miner'.s 

14   Ark.,  360;     Nelson  v.  Owen,   3  Ex'rs.  93  Va.,  408,  25  S.  E.,  100. 

Ired.   Eq.,   175;     Chadwell   v.   Jor-  ■■^Hodges,  Ex  parte,  2i  Ar'k..,  197. 


74  INJUNCTIONS.  [chap.  II. 

against  him,  first  to  confess  judgment  at  law  as  a  condition 
to  relief  in  equity,  rests  in  the  discretion  of  the  court,  to  be 
exercised  according  to  the  circumstances  of  the  case  upon 
well  defined  principles  of  equity  and  law.  The  object  to  be 
attained  in  such  cases  is  to  preserve  the  rights  of  the  person 
enjoined,  and  at  the  same  time  to  inflict  no  wrong  upon  him 
who  seeks  relief  in  equity.  The  court  should  not  require  the 
defendant  at  law  to  confess  judgment  if  such  course  would 
manifestly  endanger  his  rights,  or  when  his  bill  wholly  de- 
nies the  right  of  the  plaintiff  at  law  to  recover.  And  if  the 
injunction  is  granted  upon  such  terms,  the  confession  should 
be  required  only  upon  terms  of  the  judgment  being  afterward 
dealt  with  as  the  court  of  equity  may  direct.^^  "Where,  there- 
fore, defendant  at  law  has  been  allowed  an  injunction  against 
the  action  upon  condition  of  his  confessing  judgment  therein, 
and  the  injunction  is  afterward  dissolved  for  want  of  equity, 
plaintiffs  in  the  action  at  law  should  be  required  to  withdraw 
the  judgment  which  they  have  thus  obtained,  in  order  that 
the  cause  may  be  tried  at  law  upon  its  merits.^^  But  where, 
after  the  confession  of  judgment  by  the  defendant  in  the  suit 
at  law,  his  bill  is  dismissed  for  want  of  equity  and  he  there- 
upon moves  to  set  aside  the  confession,  it  is  incumbent  upon 
him,  in  order  to  sustain  such  motion,  to  show  clearly  a  good 
legal  defense  to  the  action ;  otherwise  the  motion  should  be 
denied.-'"'^  And  upon  a  bill  by  plaintiff  in  an  action  at  law 
to  enjoin  defendant  in  that  action  from  making  defense  there- 
to, it  is  improper  to  grant  such  injunction  and  yet  to  allow 
plaintiff  to  proceed  with  his  action  at  law.-'^^ 

■'■'■''' Great      Falls      Manufacturing  v.   Henry's   Adm'r,   25    Grat.,   575; 

Co.    V.     Henry's   Adm'r,   25    Grat.,  Tliornton   v.   Thornton,     31     Grat., 

575;     Thornton    v.     Thornton,     31  212;    Hooper  t?.  Cooke,  25  li.  J.  Ch., 

Grat,     212;      Dudley     v.      Miner's  467;    S.  C,  2  Jur.  N.  S.,  527. 
Ex'rs,   93  Va.,   408,   25    S.   B.,  100;         "Robinson  r.  Braiden.  44  West 

Parsons  v.  Snider,  42  W.  Va.,  517.  Va.,  183,  28  S.  E.,  798. 
26    S.   E.,   285.     See  also  Warwick        -« .Jones    v.    Ramsey,    3    BraJw., 

V.  Norvell,  1   Leigh,  96.  303. 

■''«  Great    Falls  Manufacturing  Co. 


CHAP.  II.] 


ACTIONS  AT    LAW. 


75 


§  61.  Bill  of  peace.  Equity  will  interfere  to  restrain  pro- 
ceedings at  law  upon  a  bill  in  the  nature  of  a  bill  of  peace, 
whose  object  is  to  restrain  useless  and  vexatious  litigation  and 
to  prevent  a  multiplicity  of  suits.^^  But  a  bill  of  peace  will 
usually  be  entertained  only  in  two  classes  of  cases :  first,  where 
complainant  has  already  sufficiently  established  his  right  at 
law;®^  and  second,  where  the  persons  controverting  the  right 
are  so  numerous  as  to  render  the  injunction  necessary  for  the 
prevention  of  a  multiplicity  of  suits.^^  And  where  the  suit  is 
between  two  persons,  and  but  one  trial  at  law  has  been  had, 
the  relief  will  not  be  granted.*^^  But  two  verdicts  upon  the 
merits  in  favor  of  complainant,  one  of  them  being  upheld  and 
affirmed,  will  suffice  to  warrant  the  court  in  entertaining  a  bill 
of  peace,  other  suits  having  been  brought  and  dismissed.*'^ 
And  where  the  right  has  been  satisfactorily  established  at  law, 
it  is  held  to  be  quite  immaterial  what  number  of  trials  have 


59  Dedman  v.  Chiles,  3  Monr., 
426;  Woods  v.  Monroe,  17  Mich., 
238;  Coville  v.  Gilman,  13  West 
Va.,  314.  And  see  Morse  v.  Morse, 
44  Vt,  84;  Allen  v.  Donnelly,  5 
Ir.  Ch.,  229;  Bishop  v.  Rosen- 
baum,  58  Miss.,  84. 

60  Eldridge  v.  Hill,  2  Johns.  Ch., 
281;  West  v.  Mayor,  etc.,  10  Paige, 
539;  Dedman  v.  Chiles,  3  Monr., 
426;  Lapeer  Co.  v.  Hart,  Harring. 
(Mich),  157;  Paterson  &  H.  R.  R. 
Co.  V.  Jersey  City,  1  Stockt,  434; 
Poyer  v.  Village  of  Des  Plaines, 
123  111.,  Ill;  Chicago,  B.  &  Q.  R. 
Co.  V.  Ottawa,  148  111.,  397,  36  N. 
E.,  85.  And  an  injunction  has 
been  granted  in  a  bill  in  the  na- 
ture of  a  bill  of  peace  to  restrain 
the  bringing  of  repeated  actions 
at  law  pending  an  appeal  by  com- 
plainant from  a  judgment  ren- 
dered against  him  in  an  unsuccess- 


ful attempt  in  one  of  the  suits  to 
establish  his  right  at  law,  such 
judgment  being  res  adjudicata 
and  therefore  estopping  him  from 
raising  his  defense  in  the  subse- 
quent actions.  Norfolk  &  N.  B.  H. 
Co.  V.  Arnold,  143  N.  Y.,  265,  38  N. 
E.,  271. 

61  Eldridge  v.  Hill,  2  Johns,  Ch  , 
281;  West  v.  Mayor,  etc.,  10  Paige. 
539;  Bath  v.  Sherwin,  1  Prec.  Ch  , 
261;  Ewelme  Hospital  v.  Andover, 
1  Vern.,  266;  Trustees,  etc.  v. 
Nicoll,  3  Johns.,  566;  Tenham  v. 
Herbert,  2  Atk.,  483;  Poyer  v. 
Village  of  Des  Plaines,  123  111.. 
Ill;  Chicago,  B.  &  Q.  R.  Co.  v. 
Ottawa,  148  111.,  397,  36  N.  E.,  85. 

62  Eldridge  v.  Hill,  2  Johns.  Ch., 
281. 

63  Dedman  v.  Chiles,  3  Monr., 
426. 


76  INJUNCTIONS.  [CIMPII 

taken  place,  whether  two  only  or  niore.*^"*  But  the  rule  re- 
quiring the  right  to  be  first  established  at  law  has  no  applica- 
tion where,  from  the  nature  of  the  ease,  the  plaintiff  can  have 
no  opportunity  so  to  establish  it.  Thus,  where  the  plaintiff 
is  in  possession  of  real  property  with  respect  to  which  the 
defendant,  under  claim  of  title,  is  bringing  repeated  actions 
of  trespass  in  which  the  question  of  title  can  not  be  adjudi- 
cated, the  plaintiff'  may  invoke  the  aid  of  equity  to  prevent  a 
multiplicity  of  suits  in  the  first  instance  since  there  is  no  form 
of  action  of  a  legal  nature  in  which  he  can  first  establish 
his  right/'"'  Where  there  is  one  general  right  connnon  to  a 
number  of  persons,  one  person  claiming  or  defending  the 
right  against  many,  or  many  against  one,  equity  will  inter- 
fere and  determine  the  right  in  order  to  prevent  vexatious 
litigation  and  multiplicity  of  suits/'*'  Thus,  where  one  is  in 
possession  of  land,  with  complete  legal  title,  though  not  all 
appearing  of  record,  he  may  enjoin  a  number  of  ejectment 
suits  brought  by  others  against  him  as  to  a  portion  of  the 
premises,  since  the  question  is  the  same  as  to  all  of  the  prem- 
ises, and  may  be  determined  by  the  chancery  proceeding,  and 
thus  avoid  a  multiplicity  of  suits/'^  So  where  numerous  in- 
dividuals have  commenced  separate  actions  at  law  against  a 
railway  company  to  recover  a  penalty  created  by  statute  for  a 
refusal  to  grant  stop-over  privileges,  the  same  general  right 
being  asserted  upon  the  one  side  and  denied  upon  the  other 
in  all  the  suits,  equitable  relief  is  properly  granted  against 
the  prosecution  of  the  actions  at  law  in  order  to  avoid  the 
hardship  and  oppression  thus  resulting  from  a  nuiltiplicity 
of  suits/"^     And  where  there  are  numerous  conflicting  claims 

'i*  Paterson    &    H.    R.    R.    Co.    v.  inson,  132  Cal.,   408,  64   Pac,  572; 

Jersey  City,  1  Stockt.,  434.  National    Park    Barfk    v.    Goddard. 

'i-i  Langdon  v.  Templeton,  61  Vt.  131   N.  Y.,  494.  30  N.  E..  566. 
119,   17   Atl.,  839.  «T  Woods    v.    Monroe,    17     Mich., 

<■■<■•  Tf nham    v.    Herbert,     2     Atk.,  238. 
483;     Woods   v.   Monroe,   17    Mich,         '^"^  Southern    Pacific    Co.    v.    Rob- 

238;     Southern   Pacific  Co.  v.  Rob-  inson,  132  Cal.,  408,  64  Pac,  572. 


CHAP.  II.]  ACTIONS  AT    LAW.  77 

to  the  same  property  which  a  court  of  law  could  not  settle 
or  adjudicate  without  working  great  injustice,  all  such  claims 
being  founded  upon  a  single,  continuous,  fraudulent  scheme 
which  inflicts  a  similar  injury  to  all,  differing  only  in  de- 
gree, equity  may  interfere  by  injunction  and  take  jurisdic- 
tion of  the  entire  controversy  in  a  suit  brought  by  one  claim- 
ant to  the  property  in  dispute  to  enjoin  the  prosecution  of 
numerous  separate  actions  of  replevin  brought  by  various 
other  claimants.^^ 

§  62.  Distinction  between  bill  of  peace  and  action  to  con- 
solidate. A  distinction,  however,  is  to  be  taken  between  a  bill 
of  peace,  proper,  of  which  equity  will  entertain  jurisdiction, 
and  one  whose  object  is  merely  to  procure  a  consolidation 
of  the  suits,  which  can  be  attained  as  well  at  law  as  in  equity. 
Thus,  where  an  injunction  was  asked  to  restrain  proceedings 
in  ninety-two  suits  in  ejectment,  the  parties,  pleadings,  title 
and  testimony  being  the  same  in  all  the  cases,  until  one  or 
more  could  be  tried,  since  the  object  of  the  bill  was  merely 
to  obtain  a  consolidation  of  the  suits,  and  a  court  of  law  was 
equally  competent  to  give  the  relief  an  injunction  was  re- 
fused.'^*^  And  an  injunction  is  properly  dissolved  which  staid 
proceedings  in  sixty-seven  suits  on  county  orders  brought  in 
one  day  against  the  county  commissioners,  since  the  defense 
Avas  at  law  and  should  be  made  there.'^^  Nor  will  a  bill  of 
peace  ordinarily  be  entertained  where  the  right  in  question 
is  litigated  between  only  two  persons,  and  the  decree  of  a 
court  of  equity  would  affect  no  others.' - 

§  63.  Multiplicity  of  suits  enjoined.  Where,  however,  a 
large  number  of  suits  are  pending  between  the  same  parties 

«'•' National    Park    Bank    v.    God-  ^i  Lapeer   Co.   v.   Hart,    Harring. 

dard,    131    N.    Y.,    494,    30    N.    E.,  (Mich.),   157. 

566.  7-  Eldridge  v.  Hill,  2  Johns.  Ch., 

'"Peters  v.  Prevost,  1  Paine's  C.  281;     Tenham   v.   Herbert,   2   Atk.. 

C,  64.     Whether  in  such  case  the  483;     Cowper  v.  Clerk,  3  P.  Wms., 

injunction      would       be        allowed  157;     Kinkaid   v.   Hiatt.     24    Neb., 

against  the  remaining  suits  after  562,  39  N.  W.,  600. 
several  verdicts,  quare. 


78  INJUNCTIONS.  [chap.  II. 

and  concerning  the  same  subject-matter,  and  the  court  in 
which  they  are  pending  has  no  power  to  order  a  consolida- 
tion of  the  actions,  a  bill  for  an  injunction  will  lie  to  prevent 
the  hardship  and  oppression  of  a  multiplicity  of  suits.  Thus, 
where  seventy-seven  actions  had  been  begun  against  a  street 
railway  company  in  a  justice  court  by  the  municipal  authori- 
ties of  a  city  to  recover  separate  penalties  for  the  running 
of  ears  without  a  license,  the  question  to  be  determined  being 
the  same  in  all  the  suits,  it  was  regarded  as  an  appropriate 
case  to  enjoin  all  the  suits  but  one,  additional  ground  for 
the  relief  being  found  in  the  fact  that  the  justice  court  was 
powerless  to  relieve  by  consolidating  the  actions.'^^  And  the 
bringing  of  repeated  suits  weekly  for  the  recovery  of  wages 
claimed  to  be  due  to  an  employee  weekly,  under  a  contract 
for  labor,  has  been  held  sufficient  to  warrant  an  injunction  to 
prevent  a  multiplicit}^  of  suits.'^^  So  upon  a  bill  to  enjoin  the 
collection  of  a  promissory  note  already  in  suit,  and  to  restrain 
defendant  from  transferring  other  notes  of  the  same  character 
not  yet  due,  an  injunction  is  proper  for  the  purpose  of  pre- 
venting a  multiplicity  of  suits  upon  the  several  notes,  and  in 
order  that  the  whole  matter  may  be  determined  upon  the  pro- 
ceeding in  equity.'^^  So  equity  may  enjoin  the  bringing  of 
successive  and  repeated  actions  at  law  for  the  recovery  of  in- 
stallments of  royalty  claimed  to  be  due  until  a  final  determina- 
tion of  an  appeal  from  a  judgment  rendered  against  complain- 
ant in  an  action  brought  for  the  recovery  of  one  of  the  in- 
stallments, where  the  same  defense  is  relied  upon  in  each 
suit  and- complainant  is  estopped  by  the  judgment  in  the 
first  suit  from  maintaining  that  defense  in  the  subsequent 
actions.  But  the  relief  in  such  a  case  should  be  granted  only 
upon  such  terms  as  will  adequately  protect  the  defendant  in 

'"  Third  Avenue  R,  Co.  v.  Mayor  ^4  Tarbox  v.  Hartenstein,  4  Bax- 

of  N.   Y.,   54   N.  Y.,  159.     See  also  ter,  78. 

Galveston,  H.  &  S.  A.  R.  Co.  v.  ^r.  Zeigler  v.  Beasley,  44  Ga.,  56. 
Dowe,  70  Tex.,  5,  7  S.  W.,  368. 


CHAP.  II.]  ACTIONS  AT    LAW.  .79 

case  the  appeal  should  finally  be  decided  adversely  to  the 
complainant.^^  And  where  the  plaintiff  had  guaranteed  the 
principal  and  interest  of  several  hundred  bonds  which  were 
in  the  hands  of  numerous  holders  and  it  was  claimed  that  the 
guarantee  was  not  binding  for  reasons  which  were  applicable 
to  all  of  the  bonds  alike,  it  was  held  that  the  plaintiff  was 
entitled  to  the  interposition  of  equity  by  injunction  to  prevent 
the  hardship  w^iich  would  result  from  being  compelled  to 
raise  such  common  defense  in  a  multitude  of  separate  actions 
at  law  brought  by  the  several  holders  of  the  bonds.'^^ 

§  63  a.  The  same.  Indeed,  the  courts  have  gone  so  far  in 
their  endeavor  to  prevent  useless  and  vexatious  litigation  as 
to  hold  in  cases  where  numerous  separate  actions  at  law  are 
about  to  be  commenced  by  a  single  individual  against  each 
of  a  large  number  of  persons,  all  involving  the  decision  of 
the  same  questions  of  law  and  fact,  that  such  parties  may 
unite  in  a  bill  to  enjoin  the  commencement  and  prosecution 
of  such  suits  notwithstanding  the  fact  that  each  of  the  com- 
plaining parties  will  be  subjected  to  the  defense  of  but  a  single 
legal  action.  In  other  words,  the  court  entertains  jurisdiction 
for  the  purpose  of  preventing  a  multiplicity  of  suits  although 
the  person  who  will  be  subjected  to  the  burden  of  a  multi- 
plicity of  suits  is  making  no  complaint.  Thus,  where  a  city 
was  about  to  commence  separate  actions  at  law  against  each 
of  a  large  number  of  individuals  for  the  recovery  of  a  penalty 
imposed  for  failure  to  comply  with  the  terms  of  an  alleged 
illegal  ordinance,  it  was  held  that  they  could  unite  in  a  single 
bill  in  equity  to  enjoin  the  prosecution  of  such  actions,  not- 
withstanding that  each  of  the  complainants  could  have  set  up 
the  invalidity  of  the  ordinance  as  a  defense  to  the  prosecu- 
tion against  him  and  would  thus  have  been  burdened  with  the 
defense  of  but  a  single  action.'^s     go  where  a  single  plaintiff 

76  Norfolk  &  N.  B.  H.  Co.  v.  Ar-    v.  Ohio  V.  I.  &  C.  Co.,  57  Fed.,  42. 

nold,  143  N.  Y.,  265,  38  N.  E.,  271.         ^s  city  of  Chicago  v.  Collins,  175 

"  Louisville,  N.   A.  &  C.  Ry.  Co.     111.,  445,  51  N.  E..  907,  49  L..  R.  A.. 


80  INJUNCTIONS.  [chap.  II. 

was  about  to  commence  separate  actions  of  ejectment  against 
each  of  several  defendants,  in  all  of  wliich  the  issues  would 
depend  upon  the  same  questions  of  law  and  upon  an  identical 
state  of  facts,  the  injunction  was  granted  restraining  the 
prosecution  of  the  ejectment  suits  pending  a  hearing  of  the 
entire  controversy  in  equity."'*  So  where  the  owner  of  a 
building  which  had  been  destroyed  by  fire  had  commenced 
separate  actions  at  law  against  each  of  several  insurance  com- 
panies to  recover  the  insurance,  the  policies  being  all  alike 
and  the  same  defense  being  interposed  in  each  case,  it  was 
held  the  companies  could  enjoin  the  prosecution  of  the  actions 
at  law  and  have  the  controversy  determined  in  equity.^^  The 
contrary  and  unquestionably  the  better  view  has  been  adopted 
by  other  courts  which  hold  that  where  the  complainant  or 
each  of  a  number  of  co-complainants  will  be  subjected  to  the 
defense  of  but  a  single  action  at  law,  no  case  is  presented  for 
the  interposition  of  equity  to  prevent  a  multiplicity  of  suits. 
These  courts  apply  the  fundamental  rule  forbidding  inter- 
ference by  injunction  where  the  legal  remedy  is  adequate 
and  the  mere  fact  that  other  persons  may  likewise  be  com- 
pelled each  to  defend  a  suit  involving  substantially  the  same 
questions  of  law  and  fact  creates  no  such  equity  upon  the 
part  of  the  defendants  as  will  justify  the  exercise  in  their 
behalf  of  the  restraining  power  of  the  court  and  the  deter- 

408,  67  Am.  St.  Rep.,  224;  Wilkie  large  number  of  individuals, 
V.  City  of  Chicago,  188  111.,  444,  58  where  the  validity  of  the  ordi- 
N.  E.,  1004,  80  Am.  St.  Rep.,  182.  nance  could  be  as  well  determined 
If  the  city  were  harassing  a  single  in  a  single  one,  thereby  subject- 
defendant  with  useless  and  re-  ing  itself  to  useless  and  unneces- 
peated  prosecutions  notwithstand-  sary  costs,  a  tax  payer  might  pos- 
ing the  illegality  of  the  ordinance,  sibly  maintain  a  bill  to  restrain 
such  defendant,  having  first  estab-  the  misapplication  of  public  funds, 
lished  his  right  in  one  of  the  ac-  th  Osborne  v.  Wisconsin  Central 
tions,  might  be  entitled  to  relief  R.  Co.,  43  Fed.,  824. 
by  a  bill  of  peace.  And  if  the  city  ""'  Tisdale  v.  Insurance  Co., 
were  about  to  commence  separate  (Miss.)  36  So.,  568. 
prosecutions     against    each    of    a 


CHAT.  11. J  ACTIONS  AT    LAW.  81 

inination  of  all  the  issues  in  a  single  chancery  proceeding. 
The  doctrine  as  thus  announced  is  undoubtedly  correct  upon 
principle  and  is  supported  by  the  better  considered  adjudica- 
tions.^^ 

§  64.  Fears  of  future  actions  insufficient ;  injunction  not  al- 
lowed to  prevent  injunction;  not  allowed  because  of  uncon- 
stitutional statute.  It  is  to  be  observed,  however,  that  mere 
apprehensions  or  fears  on  the  part  of  the  person  seeking  re- 
lief that  the  defendant  may  institute  actions  against  him  in 
the  future  will  not  warrant  a  court  of  equity  in  enjoining  the 
bringing  of  such  actions.^-  Nor  will  a  court  of  equity  powers 
grant  an  injunction  for  the  purpose  of  preventing  defendant 
in  the  injunction  suit  from  bringing  an  action  for  an  injunc- 
tion against  complainant  in  that  suit,  since  equity  will  not 
entertain  jurisdiction  upon  the  ground  that  another  court  of 
competent  jurisdiction  may  decide  improperly.^^  Especially 
will  the  relief  be  refused  in  such  case  when  a  defendant  in 
an  action  is  expressly  authorized  by  statute  to  apply  to  the 
same  court  for  an  injunction  concerning  the  subject-matter 
in  controversy .8^  Nor  will  the  court  enjoin  threatened  prose- 
cutions at  law  upon  the  ground  of  the  unconstitutionality  of 
an  act  of  legislature  under  which  the  prosecutions  are  about 
to  be  brought,  since  such  alleged  unconstitutionality  can  not 
of  itself  be  made  a  ground  of  equitable  jurisdiction.^^ 

§  65.  Multiplicity  of  suits  further  defined.  It  is  also  to 
be  borne  in  mind  that  relief  by  injunction  for  the  prevention 
of  a  multiplicity  of  suits  is  allowed  only  when  the  subject- 
matter  of  the  various  litigations  as  well  as  the  parties  thereto 

81  Turner  v.  City  of  Mobile,  135  reversing  S.  C,  7  Lans.,  151;  Wal- 
Ala.,  73,  33  So.,  132;  Scottish  lack  v.  Society,  67  N.  Y.,  23;  Wil- 
IJnion  Insurance  Co.  v.  Mohlmaa  liams  v.  Brown,  127  N.  C,  51,  37 
Co.,  73  Fed.,  66;    Winslow  v.  Jen-  S.  E.,  86. 

ness,  64  Mich.,  84,  30  N.  \V.,  905;  ss  id. 

Douglass  V.  Boardman,  113  Mich..  »*  Wallack  v.  Society,  67  N.  Y., 

618,  71  N.  W.,  1100.  23. 

82  Wolfe  V.  Burke,  56  N.  Y.,  115,  ss  id. 

6 


82  INJUNCTIONS.  [chap.  II. 

are  substantially  the  same.  And  the  fact  of  different  suits 
having-  been  brought,  each  having  a  distinct  object,  founded 
on  distinct  and  separate  ground,  and  brought  by  different  per- 
sons does  not  constitute  such  a  multiplicity  of  suits  as  to 
bring  the  case  within  the  rule  and  to  warrant  an  injunction.^^ 
And  the  pendency  of  other  actions  brought  by  various  per- 
sons against  a  defendant  for  the  same  subject-matter,  in  the 
same  and  other  states  affords  no  ground  for  enjoining  the 
prosecution  of  a  suit  against  liim.^''' 

§  65  a.  The  same.  It  is  to  be  observed  that  in  order  to 
justify  relief  by  injunction  for  the  prevention  of  a  multiplicity 
of  suits,  there  must  be  some  common  subject-matter  in  con- 
troversy or  some  common  right  or  interest  therein,  and  that 
without  this,  a  mere  community  of  interest  in  the  questions 
of  law  and  fact  to  be  determined  constitutes  no  basis  for 
equitable  relief.^^  Thus,  where  numerous  actions  at  law  have 
been  brought  by  separate  plaintiffs  against  the  same  defend- 
ant to  recover  damages  resulting  from  a  fire  started  by  sparks 
from  complainant's  locomotive,  the  mere  fact  that  the  ques- 
tions of  law  and  of  fact  are  the  same  in  all  the  actions  and 
that  the  various  parties  have  a  common  interest  in  those  ques- 
tions will  not  authorize  an  injunction  against  the  prosecution 
of  the  actions  and  the  determination  of  the  issues  in  equity .^^ 
Where,  however,  the  questions  in  controversy  in  numerous 
actions  at  law  brought  by  various  plaintiffs  all  depend  for 
their  solution  upon  an  act  which  is  present  and  continuing 
and  which  therefore  may  give  rise  to  continuous  and  repeated 
litigation,  and  where,  in  addition  to  a  common  interest  in 
the  questions  of  law  and  fact  involved,  there  is  a  community 

86  Haines  v.  Carpenter,  91  U.  S.,  town  Sulphur,  C.  &  I.  Co.  v.  Fain, 
254.  109  Tenn.,  56.  70  S.  W.,  813;   Tur- 

87  Lightfoot  V.  Planters  Bank-  ner  v.  City  of  Mobile,  135  Ala.,  73, 
ing  Co.,  58  Ga.,  136.  33  So.,  132. 

ssTribette  v.  I.  C.  R.  Co.,  70  «'■»  Tribette  v.  I.  C.  R.  Co.,  70" 
Miss..  182,  12  So..  32,  19  L.  R.  A.,  Miss.,  182,  12  So.,  32,  19  L.  R.  A., 
660.   35   Am.   St.  Rep.,  642;     Duck-     660.  35  Am.  St.  Rep.,  642. 


CHAP.  II.]  ACTIONS  AT    LAW.  83 

of  interest  or  a  common  right  or  title  in  the  subject-matter 
of  the  controversy,  equity  has  jurisdiction  to  enjoin  the  pros- 
ecution of  the  actions  at  law  and  determine  all  the  issues  in 
a   single   equitable   proceeding.^*' 

§  66.  Injunction  allowed  where  defense  can  not  be  made  at 
law;  inequitable  defenses  enjoined.  The  beneficial  effects  of 
the  jurisdiction  of  equity  in  restraint  of  proceedings  at  law 
are  nowhere  more  apparent  than  in  that  class  of  cases  where 
the  equities  relied  upon  can  not,  under  the  rigid  rules  of  law, 
be  entertained  as  a  defense  to  the  action  in  the  legal  forum. 
Thus,  the  failure  or  total  want  of  consideration  for  negotiable 
paper,  although  available  as  a  defense  to  an  action  between 
the  original  parties,  is  not  admissible  where  the  action  is 
brought  against  an  indorsee  in  good  faith  and  for  valuable 
consideration,  and  resort  must  be  had  to  equity  to  establish 
defendant's  rights.  And  where  a  negotiable  instrument  or 
note,  without  consideration,  is  valid  upon  its  face,  the  juris- 
diction of  equity  is  well  established  to  interfere  and  restrain 
suit  upon  such  instrument.  Thus,  where  a  negotiable  note, 
valid  upon  its  face,  had  been  given  without  any  considera- 
tion, and  upon  an  agreement  that  it  should  be  given  up  to 
the  maker  upon  the  happening  of  a  certain  contingency, 
which  had  happened,  and  an  action  at  law  was  afterward 
brought  upon  such  note  by  the  payees  against  the  personal 
representatives  of  the  maker,  the  suit  was  enjoined.^^  And 
this  for  ihe  reason  already  noticed,  that  the  illegality  of  the 
instrument  is  not  apparent  on  its  face,  but  is  dependent  upon 
evidence  dehors  the  instrument  itself,  whereby  the  defense 
might  fail  through  lapse  of  time.^^  And  where  a  note  was 
signed   and  delivered  without  consideration,    and    with    the 

90  Illinois  Central  R.  Co.  v.  Gar-  C.  E.  Green,  270,  affirmed  on  ap- 
rison,  81  Miss.,  257,  32  So.,  996,  95     peal,  4  C.  E.  Green,  457. 

Am.  St.  Rep.,  469.  92  Bromley   v.    Holland,     5    Ves., 

91  Metler's    Adm'rs  v.   Metier,   3     617;  Hayward  v.  Dimsdale,  17  Ves., 

111. 


84  INJUNCTIONS.  [chap.  II. 

understanding  that  it  should  not  be  enforced,  equity  will  en- 
join a  suit  thereon  by  the  administrators  of  the  payee,  since 
the  note  can  have  no  more  obligatory  effect  in  their  hands 
than  it  would  have  had  in  the  hands  of  their  intestate.^'^  So 
a  surety  upon  an  official  bond  may  restrain  the  prosecution  of 
an  action  at  law  against  him  upon  the  bond,  upon  the  ground 
of  equitable  defenses  which  can  not  be  interposed  in  the  suit 
at  law.^*  And  upon  similar  principles,  equity  may  enjoin  the 
prosecution  of  an  action  before  a  justice  of  the  peace  upon 
the  ground  that  the  defendant  in  that  suit  has  a  counterclaim, 
growing  out  of  the  same  transaction  as  that  involved  in  the 
suit,  which  is  greater  in  amount  than  that  of  the  jurisdic- 
tion of  the  justice  court  and  which  therefore  can  not  be  set 
off  in  that  suit.^-'*  And  where  the  defendant,  upon  establish- 
ing a  defense  to  an  action  at  law  brought  in  a  court  of  limited 
jurisdiction,  would  be  entitled  to  affirmative  relief  resulting 
from  establishing  such  defense  which  the  court  would  be  with- 
out jurisdiction  to  grant,  the  prosecution  of  the  action  may 
be  enjoined  and  the  whole  case  heard  in  a  court  of  general 
equity  powers.^*^  And  equity  has  jurisdiction,  when  necessary 
for  the  protection  of  the  equitable  rights  of  a  suitor,  to  restrain 
his  adversary  from  setting  up  an  inequitable  defense  in  an 
action  at  laAV,  as  well  as  from  prosecuting  an  inequitable  ac- 
tion.^'^  So  one  who  has  fraudulently  come  into  the  possession 
of  promissory  notes  has  been  enjoined  from  using  them  in 
evidence  in  actions  brought  thereon.''^  So  also  where  a  de- 
fendant has  fraudulently  procured  a  deed  which  is  calcu- 
lated to  cast  a  cloud  upon  the  plaintiff's  title  to  real  estate, 
equity  may  enjoin  the  inti-odnction  of  such  d(Mvl  in  evidence 
in   an   ejectment   suit    based   thereon."" 

••'•■'Bell  v.  Gamble,  9  Humph.,  117.  ^'v  Dodd    r.    Wilson,    4    Del.    Ch.. 

"••  Penn  v.   Ingles,  82  Va.,  65.  399. 

"•'•Gregory    v.    Diggs,     113     Cal.,  '••^  Lannes  r\  Courege,  31  La.  An, 

196.  45  Pac,  261.  74. 

i"i  National    Bank    v.   Carlton,   96  ""  Rogers     v.     Rogers,     37    Wesf. 

Oa..  469.  23  S.  E.,  388.  Va.,  407.  16  S.  E..  633. 


CHAP.  II. J  ACTIONS  AT    LAW.  85 

§  67.  Failure  of  consideration  as  ground  for  enjoining  suit. 
Upon  similar  principles  e(iuity  will  restrain  suits  upon  instru- 
ments, the  consideration  for  which,  though  good  originally, 
has  since  entirely  failed,  and  where  great  hardship  would  re- 
sult from  the  enforcement  of  payment.  Thus,  where  the  con- 
sideration for  which  a  draft  was  given  has  entirely  failed,  a 
suit  thereon  may  be  enjoined,  regardless  of  whether  the 
equities  alleged  constitute  a  good  defense  at  law,  since  the 
draft,  being  still  transferable,  might  become  the  foundation 
for  other  suits,  and  the  complainant  be  thereby  greatly 
harassed.^  So  a  suit  upon  a  note  may  be  temporarily  en- 
joined on  the  ground  that  the  property  which  was  the 
consideration  for  the  note  has  been  forfeited  to  the  govern- 
ment by  vendor's  acts  before  sale,  vendee  having  brought  suit 
in  another  jurisdiction  to  recover  the  property  from  the  gov- 
ernment.- It  is  held,  however,  that  mere  unsoundness  of  the 
property  which  constituted  the  consideration  for  the  note,  in 
the  absence  of  warranty  and  wilful  deceit,  affords  no  ground 
for  an  injunction.^^  Where  one  partner  sells  to  the  other  his 
interest  in  the  partnership  property  upon  an  implied  warranty 
of  title,  the  circumstance  of  creditors  of  the  firm  afterward 
levying  upon  and  selling  the  property  is  such  a  failure  of  con- 
sideration as  Avill  authorize  a  court  of  equitj^  to  entertain  a  bill 
on  behalf  of  the  sureties  of  the  purchaser  to  enjoin  proceed- 
ings at  law  for  the  purchase  money.^ 

§68.  Criminal  proceedings  not  enjoined;  nor  mandamus; 
exceptions.  Since  courts  of  equity  deal  only  with  civil  and 
property  rights,  they  will  not  interfere  by  injunction  with 
criminal  proceedings,  having  no  jurisdiction  or  power  to 
afford  relief  in  such  cases.  Jurisdiction  over  such  actions  isi 
conferred  upon  courts  .especially  created  to  hear  them  and, 
with  few  exceptions,  it  is  beyond  the  power  of  equity  to  con- 
trol or  in  any  manner  interfere  with  such  proceedings  by  in- 

1  Ferguson  v.  Fisk,  28  Conn.,  501.         -^  Jackson  v.  Andrews,  28  Ga.,  17. 
sCarswell  i\  Macon,  38  Ga.,  403.        4  Hough  v.  Chaffir,  4  Sneed,  238. 


86 


INJUNCTIONS. 


[chap.  II. 


junction.^  And  this  is  true  even  though  the  court  of  equity 
already  has  jurisdiction  of  the  parties  and  of  the  subject-mat- 
ter concerning  which  the  criminal  action  is  instituted.  Where, 
therefore,  a  bill  is  pending  for  relief  in  equity,  the  court  will 
not  enjoin  the  plaintiff  in  that  suit  from  prosecuting  criminal 
proceedings  against  the  same  defendants  and  concerning  the 
same  subject-matter.'^  Nor  will  equity  entertain  a  bill  for 
an  injunction  to  restrain  proceedings  upon  a  mandamus  in  a 
court  of  law,  and  a  demurrer  to  such  a  bill  will  therefore  be 
sustained.'^     So   equity  will    not    interfere    by    injunction  to 


^  Kerr  v.  Corporation  of  Preston. 
6  Ch.  D.,  463;  Saull  v.  Browne,  L. 
R.  10  Ch.,  64;  Crighton  v.  Dahmer, 
70  Miss..  602,  13  So.,  237,  21  L.  R. 
A.,  84,  35  Am.  St.  Rep.,  666;  In  re 
Sawyer,  124  U.  S.,  200,  8  Sup.  Ct. 
Rep.,  482;  Harkrader  v.  Wadley, 
172  U.  S.,  148,  19  Sup.  Ct.  Rep., 
119;  Moses  v.  Mayor,  52  Ala.,  198; 
Joseph  V.  Burk,  46  Ind.,  59;  Gault 
V.  Wallis,  53  Ga.,  675;  Phillips  v. 
Mayor,  61  Ga.,  386;  Garrison  v. 
City  of  Atlanta,  68  Ga.,  64;  New 
H.  S.  M.  Co.  V.  Fletcher,  44  Ark., 
139;  Portis  v.  Fall,  34  Ark.,  375; 
Medical  and  Surgical  Institute  v. 
City  of  Hot  Springs,  34  Ark.,  559; 
Home  Savings  &  T.  Co.  v.  Hicks, 
116  la.,  114,  89  N.  W.,  103;  State 
V.  Theard,  48  La.  An.,  1448,  21  So., 
28;  Lecourt  v.  Gaster,  49  La.  An., 
487,  21  So.,  646;  Osborn  v.  Char- 
levoix Circuit  Judge,  114  Mich.. 
655,  72  N.  W.,  982;  State  v.  Wood, 
155  Mo.,  425,  56  S.  W.,  474,  48  L. 
R.  A.,  596;  Suess  v.  Noble,  31  Fed.. 
855;  Hemsley  v.  Myers,  45  Fed., 
283;  Davis,  etc.  Mfg.  Co.  v.  City 
of  Los  Angeles,  115  Fed.,  537.  And 
see  Arbuckle  v.  Blackburn,  51  C.  C. 
A.,   122,   113  Fed.,   616. 


6  Saull  V.  Browne,  L.  R.  10  Ch., 
64.  Lord  Chief  Justice  Holt,  of 
the  Queen's  Bench,  is  reported  to 
have  said  in  the  case  of  Holder- 
staffe  V.  Saunders,  6  Mod.,  16: 
"Surely  chancery  will  not  grant 
an  injunction  in  a  criminal  mat- 
ter under  examination  in  this 
court;  and  that  if  they  did,  this 
court  would  break  it,  and  protect 
any  that  would  proceed  in  con- 
tempt of  it." 

^  Montague  v.  Dudman,  2  Ves. 
Sr.,  396.  Lord  Chancellor  Hard- 
wicke  says,  p.  398:  "If  I  should 
overrule  this  demurrer  I  should 
open  a  new  door  of  jurisdiction  tc 
this  court,  which  I  believe  would 
afford  a  source  of  very  great  in- 
convenience and  mischief,  and 
bring  all  the  corporation  and  bor- 
ough cases  in  this  kingdom  in 
some  shape  or  other  on  the  foot 
of  discovery  or  relief.  This  court 
has  no  jurisdiction  to  grant  an  in- 
junction to  stay  proceedings  on  a 
mandamus ;  nor  to  an  indictment, 
nor  to  any  information,  nor  to  a 
writ  of  pi'ohibitlon,  that  I  know  of. 
The  reason  is  that  a  mandamus  is 
not  a  writ    remedial    but    manvla- 


CHAP.  II. J 


ACT10>'S  AT    LAW. 


87 


restrain  niimicipal  officers  from  the  prosecution  of  suits  for 
the  violation  of  city  ordinances,  such  proceedings  being  of 
a  quasi  criminal  nature,  since  equity  will  not  interfere  with 
the  execution  of  the  criminal  law,  whether  pertaining  to  the 
state  at  large,  or  to  municipalities,  which  are  agents  in  the 
administration  of  civil  government.^  And  where  under  a 
statute  for  the  prevention  of  cruelty  to  animals  an  officer  is 
authorized  to  arrest  all  offenders  found  violating  the  statute, 
a  court  of  equity  will  not  enjoin  such  officer  from  making 
arrests  upon  the  ground  that  the  acts  complained  of  are 
not  in  violation  of  the  statute,  and  because  of  the  injury  which 
would  result  to  plaintiff's  business,  since  equity  will  not  thus 
interfere  with  the  execution  of  the  criminal  laws.^  If,  how- 
ever, the  act  concerning  which  an  arrest  or  criminal  prosecu- 
tion is  threatened  affects  civil  property  and  its  enjoyment,  in 
protecting  the  property  right,  equity  may  properly  enjoin  the 


tory.  It  is  vested  in  the  king's 
superior  court  of  common  law  to 
compel  inferior  courts  to  do  some- 
thing relative  to  the  public.  That 
court  has  a  great  latitude  and  dis- 
cretion in  cases  of  that  kind;  can 
judge  of  all  the  circumstances, 
and  is  not  bound  by  such  strict 
rules  as  in  cases  of  private  rights. 
That,  therefore,  must  be  given  up 
as  any  color  for  such  an  injunc- 
tion." 

« Davis  &  Farnum  Mfg.  Co.  v. 
Los  Angeles,  189  U.  S.,  207,  23 
Sup.  Ct.  Rep.  498;  Moses  v.  Mayor, 
52  Ala.,  198;  Taylor  v.  City  of 
Pine  Bluff,  34  Ark.,  603;  Chicago. 
B.  &  Q.  R.  Co.  V.  Ottawa,  148  111., 
397,  36  N.  E.,  85;  Golden  v.  City 
of  Guthrie,  3  Okla.,  128,  41  Pac, 
350;  Phillips  v.  Mayor,  61  Ga., 
386;  Mayor  v.  Patterson,  109  Ga., 
370,  34   S.   E.,   600;     City  of  Bain- 


bridge  V.  Reynolds,  111  Ga., 
758,  36  S.  E.,  935;  Paulk  v.  Mayor, 
104  Ga.,  24,  30  S.  E.,  417,  41  L.  R. 
A.,  772,  69  Am.  St.  Rep.,  128,  dis- 
tinguishing City  of  Atlanta  v.  Gate 
C.  G.  L.  Co.,  71  Ga.,  106.  Contra, 
Sylvester  Coal  Co.  v.  City  of  St. 
Louis,  130  Mo.,  323,  32  S.  W.,  649, 
51  Am.  St.  Rep.,  566,  where  the 
court  seek  to  sustain  the  jurisdic- 
tion in  order  to  prevent  a  multi- 
plicity of  suits  although  there  is 
nothing  to  show  that  the  complain- 
ants were  being  harassed  by  con- 
tinuous and  repeated  prosecu- 
tions; and  upon  the  further 
ground  that  the  ordinance,  though 
penal,  was  not  criminal  in  its  na- 
ture,— a  distinction  which  is  with- 
out  the  support  of  authority. 

9  Davis  V.  American  Society,  75 
N.  Y.,  362. 


88  INJUNCTIONS.  [chap.  li. 

criminal  prosecution.  But  in  such  case  its  interference  is 
founded  solely  upon  the  ground  of  injury  to  property  and 
the  necessity  of  preserving  property  rights.^ ^  And  where 
such  rights  are  not  clearly  involved,  the  relief  will  be  denied.^^ 
A  still  further  exception  to  the  rule  which  forbids  equitable 
interference  with  criminal  prosecutions  has  been  recognized 
in  cases  where  such  proceedings  are  instituted  by  parties  to 
a  suit  already  pending  in  equity,  for  the  purpose  of  testing 
the  same  right  as  that  in  issue  in  the  equitable  action.  A 
court  of  equity  may  always  impose  conditions  upon  a  suitor 
seeking  its  aid,  and  hence,  in  order  to  protect  its  prior  juris- 
diction, it  may  compel  him  to  abandon  the  criminal  prosecu- 
tion until  a  final  determination  of  the  whole  matter  in  equity.^  ^ 

§69.  Suit  on  fraudulent  foreign  judgment  enjoined;  rem- 
edy at  law  defined.  An  injunction  will  lie  to  restrain  an 
action  brought  upon  a  foreign  judgment  when  such  judg- 
ment was  obtained  through  fraud.  And  the  fact  that  the 
aggrieved  party  in  such  a  case  might  have  relief  by  apply- 
ing to  the  court  in  which  the  judgment  was  rendered  for  a 
new  trial  will  not  prevent  relief  in  equity ;  since  a  remedy 

10  Dobbins    v.    City    of    Los    An-  plaintiff  and  his  agents  were  being 

geles,  —  U.    S.,   — ,     25     Sup.     Ct.  annoyed   and    harassed   by    contin- 

Rep.,  18;    City  of  Atlanta  v.  Gate  ued   and   unnecessary  arrests   and 

C.    G.   L.   Co.,   71    Ga.,    106,    distin-  prosecutions    for    the   violation    of 

guished    in   Paulk     v.    Mayor,   104  an    alleged    illegal     ordinance     the 

Ga.,  24,  30  S.  E.,  417,  41  L.  R.  A.,  validity   of  which   could   be   deter- 

772,    69    Am.    St.    Rep.,    128;     Mil-  mined  in  a  single  one,  the  court  en- 

waukee  E.  R.  &  L.  Co.  v.  Bradey,  tertained  jurisdiction  of  a  bill   in 

108    Wis.,    467,     84     N.     W.,     870;  the   nature   of  a  bill   of  peace  al- 

Schlitz  Brewing  Co.  v.  City  of  Su-  though  complainant's  right  had  not 

perior,   117   Wis.,  297,    93    N.    W.,  been  established  at  law. 

1120;     Schaudler    Bottling    Co.   v.  ii  Hemsley    v.    Myers,    45     Fed., 

Welch,  42  Fed.,  561;    Southern  Ex-  283. 

press  Co.  v.  Mayor,  116  Fed.,  756.  '-/n  re  Sawyer,  124  U.   S.,   200, 

And   see  Greenwich   Insurance  Co.  8    Sup.    Ct.     Rep.,    482;     Spink    v. 

V.  Carroll,  125  Fed.,  121.     In  City  F^rancis,    19    Fed.,    670;    Wadley  v. 

of  Hutchinson  v.   Beckman,  55   C.  Blount,  65   Fed.,  667. 
C.  A.,  333,  118  Fed.,  399,  where  the 


CHAP.  II. J  ACTIONS  AT    LAW.  89 

at  law  which  will  bar  relief  in  e(iuity  must  be  one  which  the 
courts  of  the  same  state  can  apply,  and  not  a  remedy  which 
is  to  be  sought  in  the  courts  of  another  state.^^ 

§  70.  Unconscionable  bargains  with  expectant  heirs;  gam- 
bling  contracts.  Equity  may  afford  relief  by  injunction 
against  unconscionable  bargains  made  with  expectant  heirs, 
the  jurisdiction  in  such  cases  being  based  upon  the  ground 
of  fraud,  independent  of  any  question  of  usury,  and  notwith- 
standing the  usury  laws  have  been  abolished.  And  the  court 
in  such  cases  may  enjoin  actions  at  law  upon  bills  of  exchange 
thus  obtained  from  expectant  heirs,  upon  condition  of  pay- 
ment of  the  amount  actually  due.^^  And  an  injunction  haa 
been  granted  to  stay  an  action  at  law  upon  a  gambling  con- 
tract.i^  And  it  is  held,  under  a  statute  giving  a  losing  party 
the  right  to  recover  back  any  money  deposited  as  margins 
under  a  wagering  contract,  that  an  injunction  will  lie  to  re- 
strain the  prosecution  of  an  action  at  law  based  upon  a  note- 
given  as  margins.^^ 

§71.  Actions  to  recover  penalty  formerly  enjoined;  bond 
for  purchase  of  office.  The  English  Court  of  Chancery  former- 
ly granted  injunctions  to  restrain  actions  for  the  recovery  of 
the  penalty  in  a  bond,  when  the  only  question  was  as  to 
whether  the  amount  was  considered  as  a  penalty  or  as  assessed 
or  liquidated  damages.  And  in  such  eases  the  court  would  re- 
tain the  injunction  until  the  hearing,  and  would  order  an 
issue  quantum  damnificatus  to  determine. the  real  damages.^^ 
And  Avhere  an  action  at  law  was  brought  upon  a  bond  given 
for  the  purchase  of  an  office,  Lord  Thurlow  granted  an  in- 
junction, wdiich  he  afterward  made  perpetual,  upon  grounds 

13  Stanton  v.   Embry,   46    Conn.,  loRice   v.   Winslow,    182     Mass., 

595.  273,  65  N.  E.,  366. 

1*  Earl  of  Aylesford  V.  Morris,  L.  it  sioman    v.   Walter,    1   Bro.    C 

R.  8  Ch.,  484.  C,  418.     See  also  Errington  v.  Ay- 

15  Earl  of  Milltown  v.  Stewart,  3  nesly,  2  Bro.  C.  C,  341. 
Myl.  &   Cr.,  18,  affirming  S.   C,  8 
Sim.,  371. 


90  INJUNCTIONS.  [chap.  II. 

of  public  policy.^  ^  It  is  difficult,  however,  to  reconcile  these 
decisions  with  the  now  well  established  rule  denying  relief 
by  injunction  against  actions  at  law  upon  grounds  which 
might  be  urged  in  defense  of  such  actions,  and  it  is  believed 
that  courts  of  equity  would  not  now  entertain  jurisdiction 
in  cases  of  the  nature  above  discussed. 

§  72.  Solicitor  enjoined  from  acting  in  adverse  capacity. 
A  court  of  equity  may  enjoin  a  solicitor  from  acting  in  an 
adverse  capacity  against  an  estate  or  person  for  whom  and 
in  a  matter  in  which  he  has  formerly  acted  professionally, 
and  may  enjoin  him  from  communicating  adversely  any  in- 
formation in  relation  to  matters  which  have  come  to  his 
knowledge  in  such  professional  capacity .^^  And  the  applica- 
tion for  the  injunction  in  such  case  may  be  made  merely  upon 
motion,  and  without  instituting  a  new  proceeding  for  that 
purpose.^^ 

§  73.  Suits  against  receivers,  when  enjoined.  The  juris- 
diction of  equity  by  injunction  against  actions  at  law  is  also 
frequently  invoked  in  behalf  of  receivers  for  the  purpose  of 
protecting  them  against  litigation  in  other  courts.  Indeed, 
courts  of  equity  are  exceedingly  jealous  in  guarding  and  pro- 
tecting their  officers  against  unauthorized  litigation,  and  will 
not  usually  permit  their  receivers  to  be  sued  without  leave 
being  first  granted  for  that  purpose  by  the  court  appointing 
the  receiver.21  Where,  therefore,  an  action  has  been  brought 
against  a  receiver  without  leave  of  court  first  obtained,  the 
prosecution  of  such  unauthorized  action  may  be  enjoined  by 

i«  Harrington   v.    Du    Chatel,     1  also  Little  v.  Kingswood  Collieries 

Bro.    C.    C,    125;     Harrington    v.  Co.,  20  Ch.  D.,  733. 

Chastel,   Dick.,  581.  -'o  Biggs  v.  Head,  Saw.  &  Sc,  335. 

i»  Biggs  V.  Head,  Sau.  &  Sc,  335;  21  Taylor  v.  Baldwin,  14  Abb.  Pr., 

Hobhouse    v.    Hamilton,    lb.,    359;  166;    De   Groot   v.   Jay,    30    Barb., 

Brady  v.  Lawless.  lb.,  365;   Davies  483;    S.  C,  9  Abb.  Pr.,  364;   Miller 

V.  Clough,  8  Sim.,   262;    Cholmon-  v.  Loeb,   64   Barb.,   454;    Randfield 

deley  v.  Clinton,  19  Ves.,  261.     See  v.  Randfield,  3  De  G..  P.  &  J.,  766. 

reversing  S.  C,  1  Dr.  &  Sm.,  310. 


CHAP.  II.]  ACTIONS  AT    LAW.  91 

the  court  appointing  the  receiver.--  And  when  a  person  is 
proceeding  by  action  at  law  to  assert  his  right  to  property 
held  by  a  receiver  without  first  having  obtained  leave  of  court 
to  institute  such  action,  he  may  be  enjoined  upon  the  appli- 
cation of  the  receiver  from  proceeding  with  his  action,  re- 
gardless of  however  clear  his  right  may  be,  or  of  whether  he 
was  apprised  of  the  receiver's  appointment  at  the  time  of 
instituting  his  action.-^  So  where  tenants,  without  leave  of 
court,  have  brought  actions  of  trespass  or  replevin  against  a 
receiver  who  has  distrained  for  their  rent,  it  is  proper  to  en- 
join them  from  proceeding  with  such  unauthorized  suits.-'* 
And  a  court  of  equity  may  interfere  by  injunction  to  protect 
its  receiver  against  unauthorized  litigation,  even  though  the 
person  enjoined  is  proceeding  to  enforce  a  legal  right  in  the 
manner  prescribed  by  statute.  Thus,  where  real  estate  is  in 
the  custody  of  a  receiver,  and  a  railway  company,  desiring 
a  portion  of  it  for  the  construction  of  its  road,  begins  pro- 
ceedings for  a  condemnation  in  accordance  with  the  statute, 
an  injunction  may  be  granted  to  restrain  such  proceedings 
until  further  order.-^  But  an  action  against  a  receiver  in  his 
official  capacity  for  matters  pertaining  to  his  receivership  will 
not  be  enjoined,  upon  motion  of  the  receiver,  merely  on  the 
ground  that  the  controversy  involved  in  the  action  has  al- 
ready been  passed  upon  by  the  court  in  other  procedeings : 
since,  if  this  be  true,  it  furnishes  a  complete  and  sufficient 
defense  to  the  action  which  it  is  sought  to  enjoin,  and  the 
receiver  should  avail  himself  of  such  defense  in  that  action.-^ 
Nor  will  courts  of  equity  ordinarily  entertain  a  bill  for  an 
injunction  against  their  own  receivers,  the  appropriate  remedy 
for  persons  who  are  aggrieved  or  dissatisfied  with  the  action 

22  Evelyn  v.  Lewis,  3  Hare,  472;  ^^1%  re  Persse,  8   Ir.,  Eq.,    Ill; 

Tink  V.  Rundle,  10  Beav.,  318;   In  Parr  v.  Bell,  9  Ir.  Eq.,  55. 

re  Persse,  8  Ir.  Eq.,  Ill;    Parr  v.  25  Tink  v.  Rundle,  10  Beav.,  318. 

Bell,  9  Ir.  Eq.,  55.  26  jay's  Case,  6  Abb.  Pr.,  293. 

23  Evelyn  v.  Lewis,  3  Hare,  472 


92  INJUNCTIONS.  [chap.  II. 

of  a  receiver  being  to  apply  to  the  court  which  has  appointed 
him  for  relief,  rather  than  to  seek  to  enjoin  him  by  another 
suit.2^ 

§  74.  Suits  against  infants,  when  enjoined.  Courts  of 
equity  have  always  shown  a  tendency  to  a  liberal  exercise  of 
their  jurisdiction  for  the  protection  of  infants ;  and  when  two 
different  suits  are  instituted  in  behalf  of  an  infant  by  two  dif- 
ferent persons,  each  claiming  to  act  as  his  next  friend,  equity 
may  determine  which  of  the  two  should  proceed,  and  may  then 
enjoin  proceedings  in  the  other  suit.-^ 

§  75.  Landlord  and  tenant.  As  between  landlord  and  ten- 
ant, it  is  to  be  observed  that  courts  of  equity  are  generally 
averse  to  interfering  by  injunction  to  restrain  proceedings  at 
law  by  the  landlord,  either  for  the  recovery  of  rent  or  of  the 
possession  of  the  demised  premises.^^  And  equity  will  not 
interfere  at  the  suit  of  a  tenant  to  restrain  the  landlord  from 
proceeding  with  a  distress  for  rent  upon  the  ground  that  the 
rent  has  been  fully  paid;  since  in  such  case  ample  relief  may 
be  had  by  an  action  at  law,  in  replevin  or  otherwise,  for  the 
illegal  distress.^*^  Nor  will  the  landlord  be  enjoined  from  pro- 
ceedings at  law  to  dispossess  the  tenant  upon  the  ground  of  a 
promise  that  the  tenant  should  have  the  premises  for  another 
year.^^  So  the  destruction  of  the  demised  premises  by  fire 
does  not  afford  sufficient  ground  for  enjoining  an  action  at 
laAv  for  the  recovery  of  the  rent,  the  lease  containing  no  pro- 
vision for  a  suspension  of  the  rent  in  case  of  fire.^-  While,  as 
thus  shown,  equity  will  not  ordinarily  interfere  to  restrain  a 
landlord  from  pursuing  his  legal  remedies  against  the  tenant, 
yet  in  an  action  by  a  tenant  for  the  specific  performance  of  a 

^' Smith  V.  Earl  of  Effingham,  2  Cheetham,  1   Sim.,  146;    Phillips  v. 

Beav.,   232;    Winfield   v.   Bacon,   24  Jones,  9  Sim.,  519. 

Barh.,  154.  •'"'  Banks  v.  Busey,  34  Md..  437. 

■-:''  Morrison  v.  Bell,  5  Ir.  Eq.,  354.  -"i  Rapp  v.  Williams,  1  Hun,  716; 

-'('Banks   v.   Busey.  34   Md.,  437;  S.  C,  4  Thomp.  &  C,  174. 

Rapp  V.  Williams,  1  Hun,  716;   S.  32  Leeds  v.  Cheetham,  1  Sim.,  146. 
C,  4  Thomp.  &  C,  174;    Leeds  v. 


CHAP.  II.]  ACTIONS  AT    LAW.  93 

covenant  by  the  landlord  to  repair  and  protect  the  premises, 
it  has  been  held  proper  to  enjoin  the  landlord  from  statutory 
proceedings  to  dispossess  the  tenant  and  to  annul  the  lease, 
the  relief  being  granted  in  such  case  upon  the  ground  that 
the  tenant  had  no  adequate  remedy  at  law.^^ 

§  76.  Usurious  contracts.  Where  relief  by  injunction  is 
sought  against  proceedings  at  law  upon  usurious  contracts,  the 
courts  enforce  a  strict  observance  of  the  principle  that  he 
who  would  have  equity  mus^t  do  equity.  And  unless  the  per- 
son aggrieved  first  pays  or  offers  to  pay  the  amount  lawfully 
.due  upon  the  contract,  he  will  not  be  permitted  to  enjoin 
proceedings  at  law."^  And  it  is  held  that  the  amount  due 
must  be  actually  tendered  or  produced  in  court  with  lawful 
interest.^''  If,  however,  defendant  answers  without  taking 
advantage  of  this  objection,  an  injunction  already  granted  will 
not  be  dissolved  where  complainant  offers  to  pay  the  amount 
due.^^  And  where  plaintiff  files  his  bill  to  redeem  certain 
collateral  securities  which  he  has  deposited  as  security  for 
usurious  loans,  he  may,  in  a  proper  case,  have  an  injunction 
to  restrain  defendant  from  enforcing  the  usurious  contract 
by  the  collection  or  enforcement  of  the  security.^" 

§  77.  Attachment  suits.  An  injunction  is  the  proper  rem- 
edy for  the  protection  of  creditors  in  a  foreign  attachment, 
who  are  entitled  to  a  priority  of  claim  over  creditors  subse- 
quently attaching.28  But  a  suit  in  attachment  will  not  be 
restrained  on  the  ground  that  the  amount  claimed  is  so  large 

33  Valloton    V.   Seignett,    2    Abb.  v.   Commercial  Warehouse    Co.,    1 

Pr.,  121.  Hun,  718;  S.  C,  4  Thomp.  &  C,  179. 

»<  Rogers   v.   Rathbun,    1   Johns.  so  Rogers  v.  Rathbun,    1    Johns. 

Ch.,    367;    Tupper    v.    Powell,     lb.,  Ch.,  367;  Tupper  i;.  Powell,  lb.,  439. 

439;  Fanning  v.  Dunham,  5  Johns.  se  Morgan     v.     Schermerhorn,     1 

Ch.,  122;  Morgan  v.  Schermerhorn.  Paige,  544. 

1  Paige,  544;  Miller  v.  Ford,  Saxt.,  •"'  Binford  7\  Boardman,  44  Iowa 

358.    See,  as  to  an  injunction  to  re-  53. 

strain  the  sale  of  securities  pledg-  's  Erskine  v.   Staley,    12    Leigh, 

ed  as  collateral  to  a  loan,  Caldwell  406;    Moore  v.  Holt,  10  Grat,  284. 


94  INJUNCTIONS.  '     [chap.  II. 

that  defendant,  being  a  non-resident,  can  not  obtain  the  neces- 
sary security  to  dissolve  the  attachment,  and  that  his  inability 
to  procure  such  security  will  deprive  him  of  the  privilege  of 
introducing  a  defense  of  set-off.^^  Nor  will  a  court  of  equity 
enjoin  proceedings  in  attachment  upon  the  application  of  a 
third  person  not  a  party  to  the  litigation,  and  when  no  preju- 
dice is  shown  as  likely  to  result  to  complainant  from  the 
attachment  suit.'*^ 

§  78.  Awards  and  arbitrators.  Equity  will  enjoin  an  action 
at  law  upon  an  award  of  arbitrators  on  the  ground  of  improper 
conduct  on  the  part  of  the  arbitrators  in  making  the  award. 
Thus,  where  they  had  received  evidence  from  a  witness  on 
one  side,  of  which  the  other  party  was  not  apprised  or  notified, 
and  to  which  he  had  no  oppprtunity  of  replying,  the  pro- 
ceedings were  enjoined,  even  though  the  arbitrators  positively 
disclaimed  being  influenced  by  such  ex  parte  evidence.*^  And 
equity  may  enjoin  an  arbitrator  from  acting,  upon  the  ground 
of  partiality,  and  when  it  is  apparent  to  the  court  that  he 
is  not  a  fit  person  to  act,  and  when  it  is  not  probable  that  he 
will  faithfully  and  honestly  discharge  his  duty.*^  go  equity 
has  jurisdiction  to  enjoin  the  bringing  of  an  action  at  law  upon 
an  award  given  under  the  terms  of  a  fire  insurance  policy, 
upon  the  ground  that  it  was  obtained  by  means  of  false  and 
fraudulent  testimony  given  by  the  defendant.'*^  But  an  action 
upon  an  award  will  not  be  enjoined  merely  to  give  one  who 
has  gone  voluntarily  to  trial  an  opportunity  to  secure  the 
impeachment  of  witnesses,  when  he  had  been  apprised  before- 
hand of  the  nature  of  their  evidence.'*'*  Nor  will  the  relief  be 
allowed  where  the  person  aggrieved  has  been  guilty  of  laches 

3!)  Dungan    v.    Miller,     4     C.     E,  ^'s  North    British   &  M.    I.   Co.   t;. 

Green,  218.  Lathrop,  17  C.  C.  A.,  175,  70  Fed., 

••"  Williams    v.    Stewart,    56    Ga.,  429. 

603.  ■41  Woodworth  v.  Van  Buskerk,  i 

"1  Cliland  v.  Hedly,  5  R.  I.,  103.  Johns.  Ch.,  432. 

<2  Beddow  v.  Beddow,  9  Ch.  D., 
89. 


CHAP.  II.]  ACTIONS  AT    LAW.  95 

ill  applying  for  the  injunction  or  where  his  conduct  has  been 
such  as  to  estop  him  from  relief  in  equity.'*^ 

§79.  Change  of  venue;  absence  of  witness;  statute  of 
limitations.  Proceedings  at  law  may  be  enjoined  and  a  change 
of  venue  had  where  the  facts  relied  upon  have  come  to  the 
knowledge  of  complainant  too  late  to  apply  for  a  change  of 
venue  at  law.*®  But  the  relief  will  not  be  granted  because  of 
the  refusal  of  the  court  to  postpone  the  trial  on  account  of 
the  absence  of  a  material  witness,  since  that  is  a  matter  entirely 
within  the  discretion  of  the  court  of  law,  with  the  exercise  of 
which  discretion  equity  will  not  interfere.*'^  Nor  will  an 
injunction  be  allowed  to  restrain  defendant  from  pleading 
the  statute  of  limitations,  except  in  a  plain  case  of  fraudulent 
abuse  of  the  lapse  of  time.  And  in  the  absence  of  such  fraud 
and  of  any  contract  or  stipulation  that  delay  in  brining  suit 
should  not  prejudice  the  rights  of  the  parties,  an  injunction 
will  be  refused.*^ 

§  80.  Bond  for  purchase  money.  One  who  has  purchased 
personal  property  at  a  sale  under  execution,  which  is  after- 
ward proved  to  belong  to  a  person  other  than  the  judgment 
debtor,  who  recovers  it  by  due  course  of  law,  is  not  entitled 
to  an  injunction  to  restrain  proceedings  upon  his  bond  given 
for  the  purchase  money .■*^ 

§  81.  Proceedings  under  United  States  revenue  laws  rarely 
enjoined.  Courts  of  equity  will  rarely  interfere  with  the  legal 
rights  of  the  United  States  government  under  the  revenue 
laws;  and  if  justice  is  done  under  their  provisions  as  to  penal- 

45  Jones  V.  Bennett,  1  Bro.  P.  C.  See   also   Andrae    v.   Redfield,    12 

628;  Smith  v.  Whitmore,  1  H.  &  M.,  Blatch.,   407,   where  an   injunction 

676.  was  refused  which  was  sought  to 

4«  Darmsdatt  v.  Wolfe,  4  Hen.  &  restrain    defendant   from   pleading 

M.,  246.  the  statute  of  limitations  in  bar  of 

••7  Hamilton   v.   Dobbs,   4     C.     E.  an  action. 

Green,  227.  49  McGhee  v.   Ellis,   4    Lit.,    244; 

4.8  Bank  v.  Hill,  10  Humph.,  176.  Fawcet  v.  Pendleton,  5  Lit,  136. 


IH)  INJUNCTIONS.  [chap.  II. 

ties  and  forfeitures,  relief  must  be  had  by  application  to  the 
treasury  department,  and  not  by  injunction  in  equity.^^ 

§  82.  Trust ;  insolvency  of  maker  of  note.  Where  the  relief 
is  sought  on  the  ground  that  the  subject-matter  of  the  suit, 
being  a  trust,  is  within  the  jurisdiction  of  equity,  the  proceed- 
ings at  law  should  not  be  enjoined,  but  only  execution  upon 
the  judgment  which  may  be  recovered.^!  But  a  suit  upon  a 
note  will  not  be  enjoined,  for  the  protection  of  other  creditors 
of  the  maker,  on  the  ground  that  he  was  insolvent  at  the  time 
when  legal  proceedings  were  instituted,  since  the  mere  fact 
of  such  insolvency  does  not  invalidate  or  render  fraudulent 
a  note  given  for  a  bona  fide  indebtedness.^'- 

§  83.    Effect   of  the  injunction;     mandamus  not   allowed. 

The  effect  of  an  injunction  staying  proceedings  at  law  against 
the  principal,  where  special  bail  has  been  taken,  is  to  tie  up 
the  hands  of  plaintiff  in  the  action  at  law  so  that  no  proceed- 
ings can  be  had  against  the  special  bail.^^  And  where  the 
action  enjoined  was  at  issue  and  ready  for  trial  when  the 
injunction  issued  out  of  chancery  restraining  proceedings, 
j)laintift'  in  the  action  at  law  will  not  be  allowed  to  proceed  to 
trial  and  judgment  on  the  ground  of  saving  of  time  and 
expense.^"*  So  when  an  injunction  has  been  granted  against 
the  prosecution  of  an  action  at  law,  mandamus  will  not  lie 
to  compel  the  court  to  proceed  with  the  trial  of  the  cause.^-'^ 

§  84.  Acceptance  of  goods  from  debtor ;  fraudulent  decree ; 
imprisonment  for  debt.  A  suit  for  the  collection  of  a  debt 
will  not  be  restrained  because  the  plaintiff  has  accepted  of 
his  debtor  certain  goods,  with  the  understanding  that  they 
were   in   satisfaction   of  th(^   debt,   if  not   taken   from  him  by 

•■•"  Powell   V.  Redfield,  4    Blatch.,  ^''■^  Webster  v.  Chew,  etc.,  3  Har. 

4.5.  &  McHen.,  123. 

'■'  .TuRtice   V.    Scott,    4    Ired.    Eq.,  •'^*  Hutchinson     v.     Hutchinson's 

108.  Kx'rs,   1    Houst,   613. 

•'■i  Savage  v.  Ball,  2  C.   10.  (Ireen,  •"'■">  People    v.    Circuit     Judge,     40 

142.  Mich.,  63. 


CHAP.  II.]  ACTIONS  AT    LAW.  97 

superior  liens,  unless  the  debtor  seeking  the  injunction  can 
show  that  there  were  no  superior  liens  outstanding.^^  Nor 
will  an  injunction  be  granted  to  restrain  proceedings  at  law 
to  recover  damages  against  one  who  has  fraudulently  obtained 
a  decree  in  chancery  which  has  been  set  aside  on  account  of 
such  fraud.^'''  But  it  is  held  that  equity  has  jurisdiction  to 
enjoin  proceedings  against  the  person  and  equitable  assets  of 
a  debtor,  under  a  statute  abolishing  imprisonment  for  debt, 
and  providing  for  the  punishment  of  fraudulent  debtors.-''^ 

§  85.    Dismissal   of  suit,  when  enjoined;    lost  ag^reement. 

Equity  will,  in  a  proper  ease,  interfere  to  prevent  the  dismissal 
of  an  action  at  law.  Thus,  where  defendant  in  the  injunction 
suit  has,  upon  good  consideration,  given  complainant  a  power 
of  attorney  to  bring  an  action  at  law  in  his  own  name,  but  for 
complainant's  benefit,  the  dismissal  of  the  suit  by  the  nominal 
plaintiif  will  be  enjoined."'^  But  an  injunction  against  a  suit 
at  law,  the  only  equity  in  favor  of  which  is  a  written  agree- 
ment alleged  to  be  lost,  will  not  be  retained  where  the  bill 
does  not  state  that  proof  of  the  contents  of  the  lost  agreement 
can  be  given  by  parol,  the  answer  denying  all  knowledge  of 
such  agreement,  and  stating  facts  inconsistent  therewith.^^ 

§  86.  Garnishees.  Under  a  statute  authorizing  injunctions 
against  defendants  for  certain  specified  causes,  a  garnishee  is 
regarded  as  a  defendant  within  the  terms  of  the  statute,  and 
an  injunction  may  be  granted  against  him  as  such.^^  But  an 
injunction  will  not  be  allowed  before  trial  at  law  to  restrain 
a  garnishee  from  disposing  of  the  debtor's  property  in  his 
hands,  except  upon  a  showing  of  the  garnishee's  insolvency 
and  the  consequent  danger  of  loss.^- 

56  Camp  V.  Matheson,  29  Ga.,  351         go  Kent  v.  De  Baun,  1  Beas.,  220. 

"7  Peck  V.  Woodbridge,  3  Day,  «'  Malley  v.  Altman,  14  Wis.,  22; 
508.  Almy  v.  Piatt,  16  Wis.,  169. 

58  Frost  V.  Myrick,  1  Barb.,  362.        ea  Bigelow  v.  Andress,  31  111.,  322. 

fi9  Monroe   v.   Mclntyre,    6    Ired. 
Eq.,  65. 
7 


98  INJUNCTIONS.  [chap.  II. 

§  87.    Effect  of  the  injunction  on  statute  of  limitations. 

The   authorities   are   not   wholly   reconcilable   concerning   the 
effect  of  an  injunction  against  proceedings  at  law  in  its  opera- 
tion upon   the   statute   of  limitations,   and   as   to   whether  it 
suspends  the  operation  of  the  statute.    It  was  said  in  an  early 
English  case  that  if  a  party  were  staid  by  injunction  from 
prosecuting  his  suit,  the  court  would  not  permit  him  thereby 
to  be  prejudiced  by  the  statute.^^     And  in  Maryland  it  has 
been  held  that  the  operation  of  the  statute  is  suspended  by  an 
injunction  against  the  enforcement  of  the  cause  of  action,  and 
that  in  such  case  a  plea  of  the  statute  constitutes  no  defense.^'* 
And  in  Mississippi  it  is  held  that  an  injunction  against  the 
enforcement  of  a  legal  obligation  prevents  the  statute  from 
running  during  the  pendency  of  the  injunction  suit.^^     And 
the  United  States  Circuit  Court   of  Appeals  for  the  Fourth 
Circuit  has  held  that  an  injunction  against  the  prosecution 
of  an  action  upon  a  fire  insurance  policy  prevents  the  running 
of  the  contractual  period  of  limitation  named  in  the  policy.^® 
In  New  York,  however,  a  contrary  doctrine  has  been  asserted, 
and  it  has  there  been  held  that  an  injunction  does  not  have 
the  effect  of  suspending  the  statute.^'^     And  it  is  held  that 
where  it  is  sought  to  defeat  a  plea  of  the  statute  of  limitations 
by  showing  that  an  injunction  had  been  granted  against  the 
enforcement  of  the  contract,  such  reply  will  not  avail  if  the 
injunction  was  obtained  by  a  third  person  not  a  party  to  the 
contract,  the  statute  not  being  suspended  in  such  case.^^ 

«3  Anon.,   2  Cases    in    Chancery,  lion  v.  Buchanan,   60   Miss.,   496. 

217.     As  to  the  effect  of  an  injunc-  go  North  British  &  M.   I.   Co.   v. 

tion    against   a   judgment    as    ex-  Lathrop,  17  C.  C.  A.,  175,  70  Fed., 

tending  the  time  within  which  an  429. 

execution  may  issue  upon  the  judg-  07  Barker   v.   Millard,   16   Wend., 

ment,  see  "Wakefield  v.  Brown,   38  572. 

Minn.,  361.  ^'^  Wilkinson  v.  First  N.  Ins.  Co., 

04  Little  V.  Price,  1  Md.  Ch.,  182.  72   N.    Y.,   499,  affirming   S.    C,   9 

05  Tishimingo     Savings     Institu-  Hun,  522. 


CHAP.  II,]  ACTIONS  AT    LAW.  99 

§  88.  Effect  of  dissolving  the  injunction.  Upon  the  disso- 
lution of  an  injunction  to  a  suit  at  law,  the  court  as  a  court 
of  chancery  has  nothing  further  to  do  with  the  case,  but  should 
leave  the  parties  to  proceed  at  law  with  the  suit  enjoined.  And 
it  is  error  for  the  same  court  which  has  dissolved  the  injunc- 
tion, sitting  as  a  court  of  equity,  to  immediately  enter  up 
judgment  in  the  action,  sitting  as  a  court  of  law.*^^ 

89  Powers  V.  Waters,  8  Mo.,  299. 


100  INJUNCTIONS.  [chap.  II. 


II.     Defense  at  Law. 

§  89.    Proceedings  at  law  not  enjoined  when  defense  may  be  made  at 
law. 

90.  Illustrations  of  the  rule. 

91.  Cases  of  concurrent  jurisdiction  at   law  and   in  equity. 

92.  The  rule  applied  to  cases  of  set-off. 

93.  The  rule  applied  regardless  of  merits  of  action  or  fears  of  injus- 

tice. 

94.  Exceptions  to  the  rule  in  cases  of  fraud. 

§  89.  Proceeding's  at  law  not  enjoined  when  defense  may 
be  made  at  law.  The  most  frequent  ground  for  refusing  relief 
by  injunction  against  a  suit  at  law  is  that  the  defense  urged 
may  be  used  in  the  action  at  law  itself,  without  resort  to 
equity.  And  it  may  be  laid  down  as  a  general  rule  that  legal 
proceedings  will  not  be  enjoined  on  grounds  of  which  the 
person  aggrieved  may  avail  himself  in  defense  of  the  action 
at  Islw.^  In  illustration  of  the  rule,  where  complainant  files 
a  bill  to  set  aside  certain  securities  as  void  and  is  afterward 
sued  at  law  upon  the  securities,  having  a  good  defense  to  the 

1  New  York   D.  D.  Co.  v.  Amer-  land,    196   U.   S.,    611,    25    Sup.    Ct. 

lean  L.  I.  &  T.  Co.,  11  Paige,  384;  Rep.,    345;     Gibson    v.    Moore,    22 

Wolf    Lumber    Co.     v.    Brown,     88  Tex.,  611;  Hewitt  v.  Kuhl,  10  C.  E. 

Wis.,  638,  60  N.  W.,  996;   Virginia  Green,  24;   Hardinge  v.  Webster,  1 

Mining   Co.   v.  Wilkinson,   92   Va.,  Drew.   &  Sm.,   101;    De   Worms  v. 

98,    22    S.    E.,    839;    Beauchamp    v.  Mellier,    L.    R.    16    Eq.,    554;    01m- 

Putnam,    34    111.,    378;    County    of  sted's    Appeal,    86     Pa.     St.,     284; 

Cook  V.  City  of  Chicago,  158   111.,  Heath    v.    Heath,    9    Ir.    Eq.,     635; 

524,  42  N.  E.,  67;  Andel  v.  Starkel,  Anderson   v.    Bowling,    11    Ir.   Eq., 

192  111.,  206,  61  N.  E.,  356;    Smith  590.  But  see,  contra.  Bullitt's  Ex'rs 

V.   Short,    11    la.,   523;    Home   Sav-  v.  Songster's  Adm'rs,  3  Munf.,  55; 

ings  &  T.  Co.  V.  Hicks,  116  la.,  114,  Evans  v.  Taylor,  28  West  Va..  184; 

89    N.    W.,    103;     Saint  Johns  Na-  Pullman  P.   C.   Co.    r.    Central    T. 

tional   Bank  v.  Township  of  Bing-  Co.,    34      Fed.,     357;     Sweeney    v. 

ham,    113    Mich.,    203,    71    N.    W,  Williams,   36   N.   J.   Eq.,  459;    Jac- 

588;   Polk  v.  Gardner,  67  Ark.,  441.  obson    v.   Metzgar,    43    Mich.,    403; 

55  S.  W.,  840;   Powell   v.  Chamber-  Martin  v.  Orr,  96  Ind.,  27;  City  of 

lain,    22   Ga.,   123;    Scottish    Union  Seymour  v.  .1.,  M.  &  I.  R.  Co.,  126 

&  National   Insurance  Co.  v.   Bow-  Ind.,  466,  26  N.  E.,  188. 


Cll-Vr.  II.  j  ACTIONS  AT    LAAV.  101 

action  at  law,  he  will  not  be  allowed  to  enjoin  the  prosecu- 
tion of  such  suit  until  after  he  has  obtained  a  decree  in  equity.- 
Nor  in  such  case  will  the  neglect  of  the  defendant  in  the  chan- 
cery suit  to  object  to  the  jurisdiction  of  the  court  entitle 
the  complainant  to  a  preliminary  injunction  restraining  the 
suit  at  law.'  So  proceedings  at  law  will  not  be  enjoined  on 
the  ground  of  want  of  jurisdiction  in  the  court  in  which  the 
proceedings  are  instituted,  since  such  want  of  jurisdiction  may 
be  relied  upon  in  defense  of  the  action  at  law.*  And  equity 
will  not  enjoin  proceedings  in  another  court  of  competent 
jurisdiction  where  adequate  relief  may  be  had  by  appeal  from 
the  order  of  such  court.'''  Nor  will  the  fact  that  plaintiff  at  law 
has  no  cause  of  action  — as  in  an  action  of  forcible  entry  and 
detainer  that  he  has  no  title— warrant  relief  in  equity  against 
the  suit.^  So  an  injunction  will  be  refused  to  a  suit  on  a  note, 
the  only  equity  relied  upon  being  that  a  certain  payment  has 
not  been  credited,  and  complainant  making  no  tender  of  the 
remainder.'''  And  the  improper  exclusion  of  evidence  by  the 
court  in  which  the  action  is  pending  affords  no  ground  for 
enjoining  the  action,  since  the  appropriate  remedy  in  such  case 
is  by  appeal.^  Nor  does  the  fact  that  the  proceedings  sought 
to  be  enjoined  are  in  a  court  of  equity  alter  or  vary  the  rule, 
since  if  the  person  aggrieved  has  a  good  defense  to  the  equita- 
ble action  it  is  equally  as  competent  for  him  to  urge  such 
matter  in  his  answer  to  that  action  as  in  a  bill  to  enjoin.^'  So 
where  the  illegality  of  an  instrument  is  apparent  upon  the 
face  of  the  instrument  itself,  so  that  lapse  of.  time  can  not 

-  New   York  D.   D.  Co.   v.  Amer-  But   see,   contra,   Pettigrew   v.   Fo- 

ican  L.  I.  &  T.  Co.,  11  Paige,  384.  shay,  12  Hun,  483;  Freeman  v.  Car- 

3  Id.  penter,  147  Mass.,  23,  16  N.  E.,  714. 

*  Gibson  v.  Moore,  22  Tex.,  611;  «  Chadoin  v.  Magee,  20  Tex.,  476. 

Jones  i\  Stallsworth,  55  Tex.,  138;  "Powell  v.  Chamberlain,  22  Ga.. 

Dubuque  &   S.   C.  R.  Co.  v.  Cedar  123. 

Falls  &  M.  R.  Co.,  76  Iowa,  702,  39  ^  Wright  v.  Fleming,  12  Hun,  469. 

N.  W.,  691.  'Hall  v.  Fisher,  1  Barb.  Ch.  R., 

•People    V.    Coffin,    7    Hun,    608:  53. 
Wright    r.    Fleming,    12    Hun,    469. 


102  INJUNCTIONS.  [chap.  II. 

weaken  or  take  away  the  defense  whenever  action  may  be 
brought,  there  is  no  ground  for  relief  in  equity.^''  But  where 
the  illegality  is' only  to  be  made  apparent  by  evidence  dehors 
the  instrument,  the  rule  is  otherwise.^  ^ 

§  90,  Illustrations  of  the  rule.  The  general  rule  under 
discussion,  denying  relief  by  injunction  upon  grounds  of 
which  the  party  aggrieved  might  avail  himself  in  defense  of  the 
action  at  law,  is  of  such  universal  application  that  it  may  not 
be  improper  to  adduce  some  further  illustrations.  Thus, 
equity  will  not  enjoin  the  prosecution  of  condemnation  pro- 
ceedings upon  grounds  which  could  be  raised  and  relied  upon 
as  a  defense  to  such  proceedings.^  ^  So  an  injunction  will  not 
be  granted  against  an  action  at  law  because  it  is  alleged  to 
be  frivolous  and  groundless,  since  in  such  case  the  person 
aggrieved  may  make  adequate  defense  at  law.^^  So  the  holder 
of  a  policy  of  life  insurance  will  not  be  enjoined  from  prose- 
cuting an  action  thereon  upon  the  ground  that  the  policy  was 
obtained  through  fraudulent  representations  on  the  part  of 
the  insured,  since  such  defense  may  properly  be  urged  at  law.^* 
For  the  same  reason  an  action  at  law  brought  by  the  assignee 
of  a  policy  can  not  be  enjoined  upon  the  ground  that  the  assent 
of  the  company  to  the  assignment  was  fraudulently  pro- 
cured.^ ^  So  proceedings  in  garnishment  will  not  be  enjoined 
where  the  facts  and  equities  relied  upon  as  the  basis  of  the 

10  Gray  v.  Mathias,   5   Ves.,  286.  .  Co.  v.   California  &  N.  R.   Co.,  48 

11  Bromley  v.  Holland,  5  Ves.,  C.  C.  A.,  517,  109  Fed.,  509.  But 
617.  see,  contra,  City  of  Seymour  v.  J., 

12  Illinois  Central  R.  Co.  v.  City  M.  &  I.  R.  Co.,  126  Ind.,  466,  26 
of  Chicago,  138   111.,  453,  28  N.  B.,     N.  E.,  188. 

740;   Chicago,  Rock  Island  &  P.  R.  is  Kemp  v.  Tucker,  L.  R.  8  Ch. 

Co.   V.   City   of   Chicago,    143     111.,  App.,  b69. 

641,  32  N.  E.,  178;   Western  Mary-  i*  Life    Association    v.   McBlain, 

land  R.   Co.   v.  Patterson,  37   Md.,  I.  R.  9   Eq.,  176;    Home  Life  Ins. 

125;   President  v.  Baltimore,  C.  &  Co.  v.  Selig,  81  Md.,  200,  31  Atl., 

E.   M.   P.    R.    Co.,   81   Md.,   247,  31  503. 

Atl.,  854;    Kip  v.  New  York  &  H.  n^  Home   Life    Ins.   Co.   v.   Selig, 

R.  Co.,  6  Hun,  24;  Eureka  &  K.  R.  81    Md.,   200,  31   Atl.,  503. 


CHAP.  II.]  ACTIONS  AT    LAW.  103 

injunction  may  be  interposed  in  defense  of  the  garnishee  pro- 
ceedings.^^ And  a  referee  who  has  been  appointed  to  take 
testimony  in  a  pending  cause  will  not  be  enjoined  from  acting 
upon  the  ground  that  his  appointment  was  unauthorized,  there 
being  a  plain  and  adequate  remedy  by  appeal.^'^  Nor  will  an 
action  of  replevin,  brought  for  the  recovery  of  chattels  in  the 
possession  of  a  sheriff  under  the  levy  of  an  execution,  be 
restrained  upon  a  bill  filed  by  the  sheriff  claiming  the  prop- 
erty to  be  in  custodia  legis  since  this  defense  could  be  raised 
in  the  replevin  suit.^®  For  the  same  reason  an  injunction 
will  not  be  granted  to  enjoin  the  prosecution  of  an  action  at 
law  brought  to  recover  upon  a  judgment,  upon  the  ground 
that  the  complainant  was  released  from  the  judgment  by  a 
discharge  in  banki'uptcy,  since  the  discharge  would  constitute 
a  good  legal  defense.^  ^  Nor  will  an  action  for  the  recovery 
of  damages  resulting  from  a  nuisance  be  restrained  upon  the 
ground  that  the  plaintiff  is  estopped  from  asserting  the  nuis- 
ance, such  estoppel  amounting  to  a  legal  defense  to  the  suit 
at  law.20  Nor  will  equity  enjoin  the  probate  of  a  will  upon 
the  charge  that  it  was  procured  through  fraud  and  undue 
influence  where  such  matters  may  properly  be  raised  as  a 
defense  in  the  probate  proceedings.-^  And  where  suits  are 
brought  at  law  against  defendants  for  violations  of  a  village 
ordinance  against  the  sale  of  intoxicating  liquors,  equity 
will  not  entertain  a  bill  to  enjoin  the  actions,  since  whatever 
defenses  can  be  made  may  be  urged  at  law.22  So  prosecutions 
under  a  municipal  ordinance  will  not  be  restrained  upon  the 
ground  that  complainant  is  not  guilty  of  a  violation  since  his 
guilt  would  be  the  sole  issue  in  the  prosecution.-^     Nor  will 

16  Carr  v.  Lee,  44  Ga.,  376.  20  Roland    Park   Co.    v.    Hull,    92 

17  Shoemaker  v.  Axtell,  78   Ind.,     Md.,  301,  48  Atl.,  366. 

561.  21  Israel  r.  Wolf,    100    Ga.,    339, 

IS  Pickett  V.  Filer   Co.,  40   Fed.,  28   S.   E.,  109. 

313.  "-■-  Yates  v.  Village  of  Batavia,  79 

19  Saunders    v.   Huntington,    166  111.,  500. 

Mass.,  96,  44  N.  E.,  127.  And  see,  23  Shoemaker  v.  Entwisle,  1  App. 
Vost,  §  296. 


104  INJUNCTIONS.  [ClIAl'.  U, 

a  court  of  equity  enjoin  proceedings  for  a  writ  of  inandama.^, 
when  all  defenses  against  such  proceedings  may  be  properly 
urged  in  that  action,  and  when  it  is  not  shown  that  the  rights 
of  the  person  seeking  the  injunction  can  not  he  fully  pro- 
tected in  the  suit  for  mandamus.-'^  And  the  fact  that  the  plain- 
tiff in  an  action  at  law  which  is  sought  to  be  enjoined  has 
threatened  to  continue  such  actions  against  the  defendant 
affords  no  ground  for  restraining  the  suit  when  the  matter 
relied  upon  in  defense  may  be  interposed  in  the  action  at  law ; 
since  if  that  action  should  proceed  to  judgment  and  the 
defense  be  established  it  could  be  pleaded  in  bar  of  other 
actions  for  the  same  eause.^-''*  The  existence  of  a  statutory 
remedy  for  the  injury  complained  of  is  of  itself  sufficient 
cause  for  refusing  an  injunction.  Thus,  a  sheriff  will  not  be 
allowed  to  restrain  suits  brought  against  him  for  having  in 
his  official  capacity  sold  property  on  execution  to  which  there 
are  conflicting  rights,  when  he  is  by  statute  provided  with 
ample  remedy  at  law,  and  is  not  bound  to  act  unless  indemni- 
fied.26 

§  91.  Cases  of  concurrent  jurisdiction  at  law  and  in  equity. 
It  is  to  be  observed,  also,  that  the  doctrine  under  discussion 
is  not  limited  to  cases  where  courts  of  law  alone  have  jurisdic- 
tion over  the  subject-matter  of  the  litigation,  but  it  is  extended 
to  eases  over  which  concurrent  jurisdiction  exists  at  law  and 
in  equity.^^  And  although  a  court  of  equity  may  have  con- 
current jurisdiction  with  a  court  of  law  over  the  subject  in 
controversy,  it  will  not  restrain  proceedings  at  law  unless  it 
can  afford  a  more  perfect  remedy,  or  unless  the  nature  of  the 
case  is  such  that  it  may  be  better  tried  in  equitj^  than  at  law. 
Equity'  will   not,  therefore,  enjoin  an  action  upon  a  foreign 

D.  C,  252;  Ludlow  &  C.  C.  Co.  v.  '.:'■  Storrs  v.  Payne,  4  Hen.  &  M.. 

City  of   Ludlow,   102   Ky.,   354,   43  506. 

S.  W.,  435.  27  Ochsenbein  v.  Papelier,   L.  R. 

2t  People  V.  Wassoa,  64  N.  Y.,  167.  8   Ch.   App.,   695;    Hoare  v.  Brem- 

2'.  Hartraan    v.    Heady,    57    Tnd.,  ridge,  L.  R.  8  Ch.  App.,  22,  affirm- 

545.  ing  S.  C,  L.  R.  14  Eq.,  522. 


CHAP.  II.]  ACTIONS  AT    LAW.  105 

judgment  upon  the  ground  of  fi-aud  in  obtaining  the  judg- 
ment, wlien  such  defense  may  be  interi)Osed  in  that  action,  and 
when  the  question  of  fraud  may  be  better  tried  at  law.^'^  And 
Avhere,  upon  weighing  the  relative  convenience  of  the  two 
methods  of  proceeding,  it  is  found  to  be  better  to  proceed  at 
law,  a  court  of  equity  will  refuse  to  interfere  by  injunction, 
although  it  has  concurrent  jurisdiction  over  the  controversy. 
Thus,  in  a  suit  in  equity  to  enjoin  the  bringing  of  any  action 
at  law  upon  an  insurance  policy  upon  the  ground  that  it  was 
obtained  through  fraud,  equity  may  properly  refuse  to  enjoin 
when  the  matter  may  be  more  speedily  and  cheaply  deter- 
mined in  an  action  at  law  upon  the  policy .-'^ 

§  92.  The  rule  applied  to  cases  of  set-off.  The  rule  under 
discussion  may  be  applied  to  cases  of  set-off,  and  equity  will 
not  enjoin  proceedings  at  law  for  the  collection  of  a  debt  vipon 
the  ground  that  defendant  in  the  action  at  law  has  a  demand 
against  the  plaintiff  not  yet  due,  but  which  he  desires  to  set 
off  against  plaintiff's  demand,  the  rule  of  set-off  in  such  case 
being  the  same  in  equity  as  at  law.*'^^  And  the  mere  existence 
of  a  counter  demand,  or  the  pendency  of  an  account  between 
the  parties  out  of  which  a  cross  demand  may  arise,  does 
not  create  such  an  equitable  offset  as  to  warrant  an  injunction 
against  an  action  at  law.^^  But,  while  the  existence  of  cross 
demands  between  the  parties  is  not  of  itself  sufficient  to  con- 
stitute an  equitable  set-off,-"^-  yet  when  the  cross  demands  are 
of  such  a  nature  that  if  both  were  recoverable  at  law  the  one 
might  be  set  off  against  the  other,  a  court  of  equity  may,  if 
it  has  jurisdiction  of  the  subject-matter,  enforce  the  set-off  by 
enjoining  proceedings  at  law.^^     And  a  court  of  equity  may 

2'^  Ochsenbein  v.  Papelier,  L.   R.  Ch.,  191;  Burton  v.  Wellen,  6  Del. 

8  Ch.  Aim.,  695.    And  see  Evans  v.  Ch.,  403,  33  Atl.,  675. 

Taylor,  £8  West  Va.,  184.  ■■'•'  Hewitt     r.     Kiihl,     10     C.     E. 

-1'  Hoare   v.   tsremridge,   L.   R.    8  Green,  24. 

Ch.  App.,  22,  affirming  S.  C,  L.  R.  -'^  Rawson  v.  Samuel,  1  Cr.  &  Ph.. 

14  Eq.,  522.  161. 

30  Hayes'  Adm'r  r.  Hayes,  2  Del.  -'  Clark  v.  Cort,  1  Cr.  &  Ph.,  154. 


106  INJUNCTIONS.  [chap.  IL 

enjoin  the  prosecution  of  an  action  at  law  pending  a  part- 
nership accounting  between  the  parties  where  the  plaintiff 
in  the  suit  at  law  is  wholly  insolvent  and  it  is  certain  the  set- 
tlement will  show  a  balance  in  favor  of  the  complainant.^* 

§  93.  The  rule  applied  regurdless  of  merits  of  action  or 
fears  of  injunction.  The  general  doctrine  denying  relief  by 
injunction  against  actions  at  law,  where  full  defense  may  be 
made  in  such  actions,  is  applied  regardless  of  whether  the 
demands  which  are  sought  to  be  enforced  are  well  or  il'i 
founded ;  and  that  question  will  not  be  considered  upon  an 
application  for  an  injunction  if  the  parties  aggrieved  can  be 
fully  heard  in  defense  of  the  actions.  Nor  will  the  allegation 
that  plaintiff  in  the  injunction  suit  fears  that  he  may  not 
obtain  justice  in  the  proceeding  at  law,  or  that  he  should  be 
sued  in  a  court  of  higher  jurisdiction,  warrants  a  departure 
from  the  rule.^^ 

§  94.  Exceptions  to  the  rule  in  cases  of  fraud.  Exceptions 
to  the  rule  as  above  discussed  and  illustrated  have  been 
allowed  in  some  cases,  but  it  is  believed  that  in  most  instances 
they  will  be  found  to  fall  under  the  head  of  fraud,  or  some 
other  of  the  well  defined  heads  of  equity  jurisdiction.  Thus, 
an  injunction  has  been  granted  to  restrain  defendant  from  pro- 
ceeding to  recover  a  debt  when  he  has  previously  represented 
that  no  such  indebtedness  existed.^^  And  representations  and 
repeated  declarations  by  a  creditor  that  payment  of  a  par- 
ticular bonded  indebtedness  would  never  be  enforced,  upon 
the  strength  of  which  representations  others  have  been  induced 
to  act,  have  been  held  to  constitute  sufficient  ground  for  enjoin- 
ing an  action  at  law  upon  the  bond.-*^'^  So,  where  a  bond 
secured  by  mortgage  provides  that  the  principal  shall,  at  the 
option  of  the  obligee,  become  duo  upon  default  in  the  payment 

3-«  Commercial  Bank  v.  Cabell,  96  -'o  Neville  v.  Wilkinson,  1  Bro.  C. 

Va.,  552,  32  S.  E.,  53.  C,  543. 

■■■'  Butchers      Benevolent      Asso-  •'"  Money  v.  Jordan,  2  De  Gex,  M. 

elation  V.  Cutler,  26  La.  An.,  500.  &  G.,  318. 


CHAP.  II.]  ACTIONS  AT    LAW.  107 

of  interest  for  a  given  time,  a  parol  waiver  of  such  forfeiture 
by  the  obligee  may  afford  ground  for  enjoining  a  suit  upon 
the  bond.^*^  And  where,  in  a  proceeding  to  revive  a  judgment 
against  an  intestate,  the  administrator  has  been  prevented, 
without  fault  on  his  own  part,  from  pleading  plene  adminutra- 
vit,  an  injunction  has  been  granted  to  restrain  an  action  upon  the 
administrator's  bond  to  recover  the  indebtedness.-^-'  But 
equity  will  in  no  event  restrain  the  exercise  of  a  legal  right 
of  action  when  the  person  seeking  relief  does  not  show  that 
he  is  aggrieved,  and  when  it  is  not  shown  that  any  irrepara- 
ble injury  will  result  from  permitting  the  law  to  take  its 
course."**^ 

38  Bell  V.  Romaine,  3  Stew.,  24.        *'J  Lambert  v.  Lambert,  5  Ir.  Eq., 
39  Glendenning  v.  Ansley,  52  Ga.,    339. 
347. 


108  INJUNCTIONS.  [chap.  II. 


III.  Suits  Pertaining  to  Eeal  Property. 

§  95.  When  actions  of  ejectment  enjoined. 

96.  When  not  enjoined. 

97.  Cloud  upon  title;    stale  claim;    tortious    possession. 

98.  Action  of  forcible  entry  and  detainer  not  enjoined. 

99.  Suit  upon  bond  for  conveyance  on  failure  of  title;   foreclosure 

enjoined  when  mortgage  paid. 
TOO.     Suit  by  heirs  to  recover  possession;  confusion  of  boundaries. 

101.  Bill  to  establish  legal  title;   suit  by  lessor  to  recover. 

102.  Proceedings  under  landlord  and  tenant  act,  when  enjoined. 

§  95.  When  actions  of  ejectment  enjoined.  The  aid  of 
equity  is  freqiientl.y  invoked  for  the  purpose  of  enjoining 
actions  at  law  pertaining  to  real  property,  especially  actions 
of  ejectment.  As  we  have  already  seen,  an  injunction  may  be 
allowed  to  restrain  a  number  of  suits  in  ejectment  against  the 
same  persons  where  the  questions  involved  are  identical,  the 
relief  being  extended  in  such  case  for  the  purpose  of  prevent- 
ing a  multiplicity  of  suits.^  Where,  however,  the  object  of 
the  bill  is  not  so  much  to  prevent  vexatious  litigation  and  a 
multiplicity  of  suits  as  to  secure  a  consolidation  of  the  actions, 
equity  will  not  interfere,  since  a  court  of  law  is  equally  com- 
petent to  administer  the  relief  desired.^  But  an  action  of 
ejectment  may  be  enjoined  on  the  ground  that  plaintiff  is  in 
equity  and  conscience  estopped  from  making  a  claim  to  re- 
cover the  pi'emises;  as  where  his  conduct  had  been  such  as  to 
warrant  defendant  in  going  on  with  the  erection  of  works 
u[)on  the  land.-^  So  ejectment  against  a  corporation  will  be 
enjoined  where  plaintiff  in  the  suit  acted  for  the  corporation 
in  i)urchasing  tlie  land,  though  taking  the  title  in  his  own 
name,  since,  under  the  principles  pertaining  to  implied  trusts, 
he  is  regarded  in  o(|nity  as  a  trustee  foi-  the  company.^    And 

1  Woods  V.  Monroe,  17  Mich.,  238.         •'  Trenton  Banking  Co.  t'.  McKel- 
i!  Peters  r.  Prevost,    1     Paine    C.     way,  4  Halst.  Ch.,  84. 
C,  64.  '  Id. 


CHAP.  II. J  ACTIONS  AT    LAW.  109 

the  relief  has  been  granted  in  behalf  of  a  defendant  in  eject- 
ment, claiming  under  a  legal  title  of  which  he  could  not  suc- 
cessfully avail  himself  in  his  defense  at  law.^  But  where 
equities  are  equal  the  court  will  not  interfere  by  injunction; 
as  where  one  has  purchased  real  estate,  giving  a  bond  for  the 
purchase  money,  he  will  not  be  allowed  to  restrain  an  inno- 
cent purchaser  in  good  faith  and  without  knowledge  of  com- 
plainant's equities,  but  the  parties  will  be  left  to- their  remedy 
at  law." 

§  96.  When  not  enjoined.  Equity  will  not  retain  an  injunc- 
tion restraining  an  action  of  ejectment  when  it  is  apparent 
that  complainants  have  a  good  defense  to  such  action  at  law, 
and  that  the  deed  on  which  plaintiff  relies  is  void.'''  And  a 
preliminary  injunction  restraining  proceedings  in  ejectment 
will  be  dissolved  as  to  that  portion  of  the  property  the  title 
to  which  can  be  properly  determined  in  the  legal  forum.^  And 
it  may  be  laid  down  as  a  general  rule  that  equity  will  not 
restrain  a  person  from  the  assertion  of  title  to  real  estate, 
unless  the  case  is  entirely  free  from  doubt.  So  where  the 
title  is  being  tested  by  an  action  of  ejectment  in  a  court  of 
common  law  having  jurisdiction,  the  suit  will  not  be  enjoined, 
since  the  interference  in  such  a  case  would  be  repugnant  to 
the  clearly  established  principle  that,  where  different  courts 
have  concurrent  jurisdiction,  the  right  to  determine  the  con- 
troversy belongs  to  that  tribunal  to  which  resort  is  first  had.*^ 
So  an  action  of  ejectment  will  not  be  restrained  if  brought 
by  the  ow^ner  of  land  after  attaining  majority,  who,  while  an 
infant,  had  contracted  for  its  sale  and  given  a  bond  for  con- 
veyance, and  after  coming  of  age  refuses  to  ratify  the  sale, 
even  though  the  purchase  money  has  been  paid.^*^     And  the 

5  Seager  v.  Cooley,  44  Mich.,  14,         ><  Camden   &   A.   R.   Co.   v.   Stew- 

5   N.  W.,   1058.  art,  3  C.  E.  Green,  489. 

«  McFarlane  v.  Griffith,  4   Wash.         »  Stockton  v.  Williams,  1  Doug. 

C.   C,   585.  (Mich.),   546. 

7  Morris  C.  &  B.   Co.    v.    Jersey         '"  Brawner    v.    Franklin,    4   Gill, 

City,  1  Beas.,   227.  463. 


110  INJUNCTIONS.  [chap.  II. 

relief  will  not  be  granted  on  the  ground  that  the  action  is 
barred  by  the  statute  of  limitations,  where  the  suit  is  brought 
by  an  administrator  to  recover  land  for  the  benefit  of  heirs 
who  are  not  in  a  condition  to  sue,  one  of  them  being  non 
compos  and  the  other  feme  covert}^  And  where  a  single 
plaintiff  has  commenced  separate  ejectment  suits  against  each 
of  a  number  of  different  defendants,  the  same  questions  of  law 
and  fact  being  involved  in  all,  equity  will  not  entertain  a  bill 
filed  by  the  defendants  in  the  ejectments  for  the  purpose  of 
preventing  a  multiplicity  of  suits,  since  each  defendant  will 
be  subjected  to  the  burden  of  defending  but  a  single  action.^ ^ 
But  where  an  injunction  has  been  allowed  against  the  prose- 
cution of  an  action  of  ejectment  upon  the  ground  that  the 
transaction  out  of  which  plaintiff  derives  title  was  a  mort- 
gage, from  which  defendant  in  ejectment  seeks  to  redeem, 
if  the  right  of  redemption  is  established  the  injunction  should 
be  made  perpetual;  and  it  is  error  if  the  court  does  not  so 
direct.^  ^ 

§  97.  Cloud  upon  title;  stale  claim;  tortious  possession. 
The  owner  in  fee  of  real  estate  may  be  allowed  to  enjoin  the 
prosecution  of  an  action  of  ejectment  by  a  claimant  under 
a  sheriff's  deed  which  vests  an  apparently  perfect  title  in  the 
grantee,  but  whose  only  effect  would  be  to  cast  a  cloud  upon 
the  title.^**  But  the  mere  staleness  of  a  pretended  claim  of 
title,  or  the  fact  that  it  is  barred  by  the  statute  of  limitations, 
constitutes  no  sufficient  ground  for  restraining  proceedings 
in  ejectment,  since  such  ground  may  be  relied  upon  in  defense 
of  the  action  at  law.^^  And  where  complainant  has  tortiously 
obtained  possession  of  premises  pending  an  action  to  estab- 
lish his  equitable  title  thereto,  he  will  not  be  allowed  to  enjoin 
proceedings  for  the  recovery  of  the  possession. ^^ 

11  Fleming  v.  Collins,  27  Ga.,  494.        i3  Harbison  v.  Houghton,  41  111., 

12  Turner  v.  City  of  Mobile,  135     522. 

Ala.,   73,   33   So.,  132;    Winslow  v.  m  Sieman  v.  Austin,  33  Barb.,  9. 

Jenness,    64    Mich.,   84,   30    N.    W.,  if-  Horner  v.  Jobs,  2  Beas.,  19. 

905;    Douglass   v.   Boardman,     113  i<>  J^Jx  parie  Clarke,  1  Russ.  &  M., 

Mich.,  618,  71   N.  W..  1100.  5G3. 


CHAP.  II.]  ACTIONS  AT    LAW.  Ill 

§  98.    Action  of  forcible  entry  and  detainer  not  enjoined. 

An  injunction  will  not  be  allowed  against  an  action  of  forci- 
ble entry  and  detainer  where  it  does  not  appear  that  a  cer- 
tain and  manifest  irreparable  injury  would  follow  the  with- 
holding of  the  relief.  The  rule  rests  upon  the  well  established 
principle  that  he  who  invokes  the  aid  of  equity  must  come 
into  court  with  clean  hands ;  and  in  point  of  law  one  who  is 
liable  for  an  action  of  forcible  entry  and  detainer  has  a  taint 
of  wrong  about  him,  and  is  not,  as  a  matter  of  right,  entitled 
to  the  interference  of  a  court  of  chancery.^^  Nor  will  the  relief 
be  granted  in  the  absence  of  any  allegations  of  fraud,  mis- 
take, accident  or  surprise.^ ^  And  where  it  is  sought  to  enjoin 
an  action  of  forcible  entry  and  detainer,  but  it  is  apparent 
that  complainants  in  the  injunction  suit  have  a  full  and 
complete  defense  at  law,  equity  will  apply  the  general  rule 
denying  equitable  relief  where  an  adequate  remedy  exists  at 
law,  and  will  refuse  to  interfere.^^ 

§  99.  Suit  upon  bond  for  conveyance  on  failure  of  title; 
foreclosure  enjoined  when  mortgage  paid.  A  suit  at  law  upon 
a  bond  for  the  conveyance  of  real  estate  has  been  enjoined 
where  it  appeared  that  vendor  had  no  title  at  the  time  of 
making  the  agreement  to  convey;  in  such  case  equity  treats 
the  contract  as  an  executed  one  until  vendee  receives  that 
for  which  he  has  contracted.^o  And  a  mortgagor  who  has 
paid  his  mortgage,  and  afterward  conveyed  with  covenants 
of  warranty  to  a  third  person,  may  properly  enjoin  a  suit  by 
the  mortgagee  who  attempts  to  foreclose  the  mortgage,  without 

17  Crawford    v.   Paine,    19    Iowa,  sistent  with  the  established   prin- 
172;     Lamb  v.   Drew,  20   Iowa,  15.  ciple   of  refusing  relief   in  equity- 
is  Lamb  v.  Drew,  20  Iowa,  15.  where  ample  redress  can  be  had  at 
19  Womack  v.  Powers,  50  Ala.,  5.  law;    since  the  want  of  considera- 
2"  Dorsey  v.  Hobbs,  10  Md.,  412.  tion,  resulting  from  want  of  title. 
Although  this  case  goes  to  the  full  could  just  as  efficiently  be  urged  in 
extent  of  the  principle  announced  defense  of  the  action  at  law  as  in 
in    the   text,   yet   it   may   well   be  a  bill  in  equity, 
questioned  whether  the  rule  is  con- 


112  INJUNCTIONS,  [chap.  II. 

waiting  until  suit  upon  his  covenants  of  warranty  to  interpose 
his  defense.-^ 

§  100.  Suit  by  heirs  to  recover  possession;  confusion  of 
boundaries.  An  action  brought  by  heirs  at  law  to  recover 
possession  of  premises  will  not  be  enjoined  at  the  instance  of 
a  devisee  under  a  lost  will  which  has  been  insufficiently 
proven,  the  proper  remedy  being  for  complainant  to  retrace 
his  steps  and  correct  his  errors  in  the  probate  court  where 
they  were  made.--  And  where  an  injunction  is  sought  against 
an  action  at  law  on  the  ground  of  confusion  of  boundaries, 
complainant  must  allege  the  fact  of  such  confusion  in  his  bill, 
and  set  forth  the  circumstances  producing  it.-^ 

§  101.  Bill  to  establish  legal  title ;  suit  by  lessor  to  recover. 
A  bill  to  establish  a  legal  title  and  to  restrain  proceedings  at 
law  will  not  be  ^  entertained,  no  equitable  circumstances 
appearing  in  the  case  and  nothing  that  prevents  a  full  defense 
at  law,  complainant  not  even  alleging  that  he  is  unable  to 
defend  at  law.-^  Nor  will  an  injunction  be  allowed  against 
proceedings  at  law  by  a  lessor  to  recover  possession  of  his 
property  demised  to  a  lessee  under  a  lease  from  year  to  year, 
on  the  ground  that  complainant  has  made  valuable  improve- 
ments which  would  be  lost  to  him  in  case  he  were  dispos- 
sessed of   the   property.--'' 

§  102.  Proceedings  under  landlord  and  tenant  act,  when 
enjoined.  When  the  title  to  real  property  is  being  determined 
in  a  case  alread.y  pending  in  a  court  of  equity  powers,  the 
court  may  enjoin  one  of  the  parties  to  the  cause  from  proceed- 
ing before  a  justice  of  the  peace  to  recover  possession  of  the 
premises  in  controversy  under  the  landlord  and  tenant  act 
of  the  state,  the  relief  being  granted  in  such  case  upon  the 
ground  of  prevention  of  a  multiplicity  of  suits.^" 

21  Hul)bard  v.  Jasinski,  4G  111..  -'  De  Groot  v.  Receivers,  2  Green 
160.  Ch.,  198. 

22  Clarke  v.  Clarke,  7  R.   I.,  45.  2.-.  West  v.  Flannagan,  4  Md.,  36. 

23  Foster.  Ex  parte,  11  Ark.,  304.  -''<  Daraschroeder     v.    Thias,     51 

Mo.,  100. 


CHAP.  II.]  ACTIONS   AT    LAW.  113 


IV.     Suits  ix  F()I{p:i(;v  C'ourts. 

^  103.     The  English    rule;    foreign  courts   not   enjoined,    but  only  the 
parties. 

104.  Illustrations  of  the  rule. 

105.  Court  may  enjoin  parties  within  its  jurisdiction,  although  the 

property  is  abroad;   English  rule. 

106.  American  rule. 

107.  Equity   declines   to   interfere    when    foreign   tribunal    may    do 

more  complete  justice. 

§  103,  The  English  rule;  foreign  courts  not  enjoined,  but 
only  the  parties.  The  jurisdiction  of  courts  of  equity  to  re- 
strain proceedings  in  the  courts  of  a  foreign  country  has  been 
the  subject  of  much  contention,  resulting  in  not  a  little  conflict 
of  authority.  The  jurisdiction  of  the  English  Court  of  Chan- 
cery thus  to  interfere  with  the  proceedings  of  foreign  courts, 
although  formerly  denied/  may  now  be  regarded  as  definitely 
settled  and  clearly  established.  In  the  exercise  of  this  juris- 
diction the  court  does  not  assume  to  control  or  interfere  with 
the  courts  of  the  foreign  country,  since  any  such  assumed 
control  would  be  manifestly  inconsistent  with  the  plainest 
principles  of  national  sovereignty  and  equality.  It  rather 
proceeds  upon  the  undoubted  authority  which  it  possesses 
over  persons  within  its  territorial  limits  and  under  its  juris- 
diction to  restrain  them  from  using  the  tribunals  of  a  foreign 
state  in  such  a  manner  as  is  contrary  to  equity  and  good 
conscience.  When,  therefore,  the  parties  to  a  suit  in  a  foreign 
country  reside  within  the  jurisdiction  of  the  English  Court  of 
Chancery,  it  may  in  a  proper  case  act  in  personam  upon  these 
parties,  and  prohibit  them  from  proceeding  further  with  the 
suit.  The  proceedings  are  regarded  as  purely  in  personam, 
the  mandate  of  the  court  being  directed  to  the  parties  and  not 
to  the  tribunal  in  which  the  action  is  pending.- 

1  Lowe  V.  Baker,  Free.  Chy.,  125;  -  Cranstown  v.  Johnston,  3  Ves., 
S.  C,  sub  nom.  Love  v.  Baker,  182,  5  Ves.,  277;  Bunbury  v.  Bun- 
Nels.,  103.  bury,  3   Jur.,  648,  affirming  S.  C, 


114 


INJUNCTIONS. 


[chap.  II. 


§  104.  Illustrations  of  the  rule.  In  accordance  with  these 
principles  the  indorsee  of  a  bill  of  exchange  has  been  re- 
strained in  England  from  bringing  suit  upon  the  bill  of 
exchange  in  the  courts  of  Ireland,  upon  grounds  which  would 
have  warranted   the  relief  against  such  suit  in  the  English 


1  Beav.,  313;  Carron,  etc.  v.  Mac- 
laren,  5  H.  L.  Cases,  416;  Beck- 
ford  V.  Kemble,  1  Sim.  &  Stu.,  7; 
Harrison  v.  Gurney,  2  Jac.  &  W., 
563;  Bowles  v.  Orr,  1  Y.  &  C,  464; 
In  re  Belfast  Shipowners  Co., 
(1894)  1  L.  R.  Ir.,  321;  Portar- 
lington  V.  Soulby,  3  Myl.  &  K.,  104. 
In  the  latter  case  the  history  of 
the  jurisdiction  and  the  principles 
upon  which  it  is  based  are  very 
clearly  laid  down  by  Lord  Chan- 
cellor Brougham,  as  follows:  "Soon 
after  the  Restoration,  and  when 
this,  like  every  other  branch  of 
the  court's  jurisdiction,  was,  if  not 
in  its  infancy,  at  least  far  from 
that  maturity  which  it  attained 
under  the  illustrious  series  of  chan- 
cellors— the  Nottinghams  and  Mac- 
clesfields,  the  parents  of  equity — 
the  point  received  a  good  deal  of 
consideration  in  a  case  which 
came  before  Lord  Clarendon,  and 
which  is  reported  shortly  in  Free- 
man's Reports,  and  somewhat 
more  fully  in  Chancery  Cases,  un- 
der the  name  of  Lowe  v.   Baker, 

2  Freem.,  125;  1  Ch.  Cas.,  67.  In 
Lowe  V.  Baker  it  appears  that  one 
only  of  several  parties  who  had 
begun  proceedings  in  the  court  of 
Leghorn  was  resident  within  the 
jurisdiction  there,  and  the  court 
allowed  the  suhp<Ena  to  be  served 
on  him,  and  that  this  should  be 
good  service  on  the  rest.  So  far 
there  seems  to    have    been     very 


little  scruple  in  extending  the  ju- 
risdiction. Lord  Clarendon  refused 
the  injunction  to  restrain  these 
proceedings  at  Leghorn,  after  ad- 
vising with  the  other  judges.  But 
the  report  adds:  '8ed  quaere,  for 
all  the  bar  was  of  another  opin- 
ion;' and  it  is  said  that,  when  the 
argument  against  issuing  it  was 
used,  that  this  court  had  no  au- 
thority to  bind  a  foreign  court,  the 
answer  was  given  that  the  injunc- 
tion was  not  directed  to  the  for- 
eign court,  but  to  the  party  with- 
in the  jurisdiction  here — a  very 
sound  answer,  as  it  appears  to  me; 
for  the  same  argument  might  ap- 
ply to  a  court  within  this  country, 
which  no  order  of  this  court  ever 
affects  to  bind,  our  orders  being 
only  pointed  at  the  parties  to  re- 
strain them  from  proceeding.  Ac- 
cordingly, this  case  of  Lowe  v. 
Baker  has  not  been  recognized  or 
followed  in  later  times.  Two  in- 
stances are  mentioned  in  Mr.  Har- 
grave's  collection  of  the  jurisdic- 
tion being  recognized;  and  in  the 
case  of  Wharton  v.  May,  5  Ves., 
71.  See  also  Kennedy  v.  Earl  of 
Cassillis,  2  Swanst.,  313;  Bushby 
V.  Munday,  5  Madd.  R.,  297;  Har- 
rison V.  Gurney,  2  J.  &  W.,  563. 
In  Beauchamp  v.  Marquis  of  Hunt- 
ley, Jac,  546,  which  underwent  so 
much  discussion,  part  of  the  decree 
was  to  restrain  the  defendants 
from  entering  up  any  judgment  or 


CHAr.  II.] 


ACTIONS  AT    LAW. 


115 


courts.^  So  a  creditor  who  has  availed  himself  of  a  decree  in 
England  to  procure  relief  against  the  assets  of  an  estate 
there  was  enjoined  from  proceeding  with  a  suit  against  the 
same  estate  in  Ireland."*  And  the  same  principle  has  been 
recognized  by  the  Irish  Court  of  Chancery;  and  where  suits 
were  instituted  in  that  and  the  English  Court  of  Chancery 
concerning  the  same  subject-matter,  the  plaintiff  in  the  Eng- 
lish suit  was  enjoined  in  Ireland  from  further  prosecuting 
the  suit  in  England  without  permission  of  the  master  of  the 
rolls  there,  to  be  obtained  upon  notice  to  the  plaintiff  in  the 
Irish  suit.^ 


carrying  on  any  action  in  what  is 
called  the  court  of  great  session  in 
Scotland — meaning,  of  course,  the 
court  of  session.  I  have  directed 
a  search  to  be  made  for  precedents, 
in  case  the  jurisdiction  had  been 
exercised  in  any  instances  which 
have  not  been  reported;  and  one 
has  been  found  directly  in  point. 
It  is  the  case  of  Campbell  v.  Houl- 
ditch,  in  1820,  where  Lord  Eldon 
ordered  an  injunction  to  restrain 
the  defendant  from  further  pro- 
ceeding in  an  action  which  had 
commenced  before  the  court  of 
session  in  Scotland.  From  the  note 
which  his  lordship  himself  wrote 
upon  the  petition  requiring  a  fur- 
ther affidavit,  and  from  his  refus- 
ing the  injunction  to  the  extent 
prayed,  it  is  clear  that  he  paid 
particular  attention  to  it.  This 
precedent,  therefore,  is  of  very 
high  authority.  In  truth,  nothing 
can  be  more  unfounded  than  the 
doubts  of  the  jurisdiction.  That 
is  grounded,  like  all  other  juris- 
diction of  the  court,  not  upon  any 
pretension  to  the  exercise  of  ju- 
dicial and  administrative  rights 
abroad,  but  on  the  circumstance  of 


the  person  of  the  party  on  whom 
this  order  is  made  being  within 
the  power  of  the  court.  If  the 
court  can  command  him  to  bring 
home  goods  from  abroad,  or  to 
assign  chattel  interests,  or  to  con- 
vey real  property  locally  situate 
abroad;  if,  for  instance,  as  in 
Penn  v.  Lord  Baltimore,  1  Ves. 
Sen.,  444,  it  can  decree  the  per- 
formance of  an  agreement  touch- 
ing the  boundary  of  a  province  in 
North  America;  or,  as  in  the  case 
of  Tellor  v.  Carteret,  2  Vern.,  449, 
can  foreclose  a  mortgage  in  the 
Isle  of  Sark,  one  of  the  channel  is- 
lands,— in  percisely  the  like  man- 
ner it  can  restrain  the  party  be- 
ing within  the  limits  of  its  juris- 
diction from  doing  anything 
abroad,  whether  the  thing  forbid- 
den be  a  conveyance,  or  other  act 
in  pais,  or  the  instituting  or  pros- 
ecution of  an  action  in  a  foreign 
court." 

3  Portarlington  v.  Soulby,  3  Myl. 
&  K.,  104. 

4  Beauchamp  v.  Marquis  of  Hunt- 
ley,  Jac,   546. 

5  Parnell   v.   Parnell,   7   Ir.    Ch., 
322. 


116  INJUNCTIONS.  [chap.  II. 

§  105.  Court  may  enjoin  parties  within  its  jurisdiction, 
although  the  property  is  abroad ;  English  rule.  The  fact  that 
the  property  which  is  the  subject-matter  of  the  controversy 
is  located  in  a  foreign  country  will  not  prevent  the  court  from 
exercising-  the  jurisdiction  where  all  the  parties  to  the  tran- 
saction are  within  its  reach  and  amenable  to  its  process.  And 
if  it  be  made  to  appear  that  the  matters  in  controversy  can  be 
more  expeditiously  adjusted  and  the  ends  of  justice  better 
attained  in  the  jurisdiction  where  the  parties  then  are,  pro- 
ceedings in  the  courts  of  the  foreign  country  will  be  enjoined.'' 
And  where  parties  have  proceeded  in  equity  as  far  as  a  decree, 
and  pending  the  settlement  of  accounts  thereunder  by  a  mas- 
ter in  chancery  proceedings  are  instituted  in  respect  to  the 
same  matter  in  another  countr.y,  an  injunction  may  be  al- 
lowed.''' So  where  all  the  parties  are  within  the  jurisdiction 
of  the  court  of  equity,  and  it  has  on  a  bill  to  redeem  under  a 
mortgage  decreed  an  inquiry  as  to  the  amount  due,  it  may 
restrain  proceedings  for  the  foreclosure  of  the  mortgage  in 
the  courts  of  another  country  on  such  terms  as  it  thinks 
proper.^  If,  however,  upon  balancing  the  convenience  and 
inconvenience  likely  to  result  to  the  different  parties,  it  ap- 
pears that  the  questions  involved  can  be  more  conveniently 
litigated  in  the  foreign  court,  an  injunction  will  be  refused.^ 

§  106.  American  rule.  While  in  this  country  the  aid  of 
equity  is  rarely  if  ever  invoked  to  restrain  proceedings  in  the 
courts  of  foreign  nations,  yet  the  same  principles  are  held 
applicable  to  the  case  of  enjoining  citizens  of  one  state  from 
proceedings  at  law  in  the  courts  of  a  sister  state.  And  while 
there  is  a  lack  of  uniformity,  amounting  even  to  a  conflict  .of 
authority,    in    the   decided   cases,   the   English   rule    seems  to 

fi  Bunbury   v.   Bunbury,  1   Beav.,         «  Beckford   r.  Kemble,  1    Sim.  & 
318,  affirmed  3  Jur.,  648;  Beckforrl     Stu..    T. 
V.  Kemble,  1  Sim.  &  Stu..  7.  '•'  Jones  v.   Geddes.  1    Ph.,  724. 

'  Wedderburn   v.   Wedderburn,   2 
Beav.,   208. 


cuAr.  II.] 


ACTIONS  AT    LAW. 


117 


have  the  support  of  the  clear  weight  of  authority;  and  the 
courts  of  one  state  will,  in  a  proper  case,  enjoin  persons 
within  their  jurisdiction  from  instituting  legal  proceedings  in 
other  states,  or  from  further  proceedings  in  actions  already 
begun.^"     As  we  have  seen  in  a  preceding  section,  a  distinc- 


10  Cole  V.  Cunningham,  133  U.  S., 
107,  10  Sup  Ct.  Rep.,  269;  Dehon 
V.  Foster,  4  Allen,  545;  Bank  of  B. 
Falls  V.  Rutland,  28  Vt,  470;  Ver- 
mont &  Canada  R.  Co.  v.  Vermont 
Central  R.  Co.,  46  Vt,  792;  Hazen 
V.  Lyndonville  Bank,  70  Vt.,  543, 
41  Atl.,  1046,  67  Am.  St.  Rep.,  680; 
Hays  V.  Ward,  4  Johns.  Ch.,  123; 
Vail  V.  Knapp,  49  Barb.,  299;  Key- 
ser  V.  Rice,  47  Md.,  203;  Miller  v. 
Gittings,  85  Md.,  601,  37  Atl.,  372, 
37  L.  R.  A.,  654,  63  Am.  St.  Rep., 
52;  Snook  v.  Snetzer,  25  Ohio  St., 
516;  Hawkins  v.  Ireland,  64  Minn., 
339,  67  N.  W.,  73,  58  Am.  St.  Rep., 
534;  Moton  v.  Hull,  77  Tex.,  80,  13 
S.  W.,  849,  8  L.  R.  A.,  722.  And 
see,  upon  the  general  subject  of 
the  powers  of  equity  to  control 
the  action  of  persons  within  its 
jurisdiction  with  reference  to  mat- 
ters beyond  its  jurisdiction,  Mit- 
chell V.  Bunch,  2  Paige,  606;  Mas- 
sie  V.  Watts,  6  Cranch,  148.  But 
see,  contra.  Burgess  v.  Smith,  2 
Barb.  Ch.  R.,  276;  Williams  v. 
Ayrault,  31  Barb.,  364;  Carroll  v. 
Farmers  &  Mechanics  Bank,  Har- 
ring.    (Mich.),   197.  Even      the 

courts  of  New  York,  which  have 
contended  most  strenuously  against 
the  rule,  are  by  no  means  inflexi- 
ble in  denying  the  relief;  and  the 
injunction  was  allowed  in  Hays  v. 
Ward,  4  Johns.  Ch.,  123,  and  in 
Vail  t'.  Knapp,  49  Barb.,  299,  su- 
pra.    And    in   Mead   v.   Merritt,    2 


Paige,  402,  the  jurisdiction  of 
equity  is  i-ecognized  to  restrain 
citizens  of  one  state  from  begin- 
ning suits  in  a  sister  state,  though, 
denied  as  to  suits  already  begun. 
The  strongest  reason  which  can  be 
urged  against  the  exercise  of  this 
jurisdiction  is  that  assigned  in 
denying  the  injunction  in  Carroll 
V.  Farmers  &  Mechanics  Bank, 
Harring.  (Mich.),  197,  that,  if 
courts  of  one  state  should  see  fit 
to  enjoin  proceedings  in  another, 
that  other  might  retaliate  in  like 
manner  by  enjoining  proceedings 
in  the  first,  and  thus  give  rise  to 
an  endless  conflict  of  jurisdiction. 
Even  this  reasoning  loses  its  force 
when  it  is  remembered  that  the 
injunction  is  not  directed  to  the 
court  of  the  foreign  state,  but  sim- 
ply to  the  parties  litigant,  the  pro- 
ceeding being  purely  in  personam. 
In  First  National  Bank  v.  'Lb.  Due 
39  Minn.,  415,  40  N.  W.,  367,  where 
it  was  sought  to  enjoin  the  prose- 
cution of  an  attachment  against 
complainant,  a  national  bank,  and 
against  its  property  located  in  a 
foreign  state,  the  court  held  that, 
since  it  was  impossible  for  the 
foreign  court  to  acquire  jurisdic- 
tion either  over  the  person  of  com- 
plainant because  of  the  impossi- 
bility of  service  of  process,  or  over 
its  property  because  of  the  inhibi- 
tion of  a  federal  statute  which 
prohibited      attachments      against. 


118 


INJUNCTIONS. 


[chap.  II. 


tion  is  drawn  between  a  court  of  equity  interfering  with 
the  action  of  the  courts  of  a  foreign  state,  and  restraining 
persons  within  its  own  jurisdiction  from  using  foreign  tri- 
bunals as  instruments  of  wrong  and  oppression.  While,  there- 
fore, the  court  will  assume  no  control  over  the  course  of  the 
proceedings  in  the  foreign  tribunal,  it  may  and  will  inter- 
fere to  prevent  those  who  are  amenable  to  its  own  process 
from  instituting  or  carrying  on  suits  in  other  states  which  will 
result   in  injury   and   fraud.^^      Thus,   where   a   creditor   and 


national  banks  or  their  property 
before  final  judgment,  the  injunc- 
tion was  unnecessary  for  the  pro- 
tection of  complainant's  rights 
and  was  therefore  properly  denied. 
11  Dehon  v.  Foster,  4  Allen,  545; 
Vail  V.  Knapp,  49  Barb.,  299 ;  Key- 
ser  V.  Rice,  47  Md.,  203;  Miller  v. 
Gittings,  85  Md.,  601,  37  Atl.,  372, 
37  L.  R.  A.,  654,  63  Am.  St.  Rep., 
52;  Snook  v.  Snetzer,  25  Ohio  St., 
516;  Vermont  &  Canada  R.  Co.  v. 
Vermont  Central  R.  Co.,  46  Vt., 
792;  Hazen  v.  Lyndonville  Bank, 
70  Vt,  543,  41  Atl.,  1046,  67  Am. 
St.  Rep.,  680;  Hawkins  v.  Ireland', 
64  Minn.,  339,  67  N.  W.,  73,  58 
Am.  St.  Rep.,  534;  Moton  v.  Hull, 
77  Tex.,  80,  13  S.  W.,  849,  8  L.  R. 
A.,  722;  Great  Falls,  etc.  v.  Wot- 
ster,  23  N.  H.,  470.  In  this  case 
Gilchrist,  C.  J.,  says:  "It  would 
be  a  great  defect  in  the  adminis- 
tration of  the  law  if  the  mere  fact 
that  the  property  was  out  of  the 
state  could  deprive  the  court  of 
the  power  to  act.  As  much  injus- 
tice may  be  perpetrated  in  a  giv- 
en case,  against  the  citizens  of  this 
state,  by  going  out  of  the  jurisdic- 
tion and  committing  a  wrong,  as 
by  staying  here  and  doing  it; 
.    .    .    as     the     legislature     has 


conferred  upon  the  court  the  power 
to  issue  injunctions  whenever  it 
is  necessary  to  prevent  injustice, 
it  is  the  duty  of  the  court  to 
exercise  that  power  upon  the 
presentation  of  a  proper  case,  and 
when  it  can  be  done  consistently 
with  the  acknowledged  practice  in 
courts  of  equity.  As  the  principle 
which  is  sought  to  be  applied  here 
has  been  recognized  for  nearly  two 
hundred  years,  we  have  no  hesita- 
tion in  holding  that  the  court  has 
jurisdiction."  In  a  leading  Amer- 
ican case  upon  this  subject  the 
court  say:  "The  authority  of  this 
court  as  a  court  of  chancery,  upon 
a  proper  case  being  made,  to  re- 
strain persons  within  its  jurisdic- 
tion from  prosecuting  suits  either 
in  the  courts  of  this  state  and  of 
other  states  or  foreign  countries,  is 
clear  and  indisputable  In  the  ex- 
exercise  of  this  power  courts  of 
equity  proceed  not  upon  any  claim 
of  right  to  interfere  with  or  con- 
trol the  course  of  proceedings 
in  other  tribunals;  .  .  .  the 
jurisdicfion  is  founded  on  the 
clear  authority  vested  in  courts  of 
equity  over  persons  within  the 
limits  of  their  jurisdiction  and 
amenable    to    process    to    restrain 


CHAP.  II.] 


ACTIONS  AT    LAW. 


119 


debtor  are  both  citizens  of  and  residents  in  the  same  state, 
and  the  creditor  institutes  an  action  of  attachment  and  gar- 
nishee proceedings  in  another  state  to  reach  credits  due  to  the 
debtor  there,  and  which  would  have  been  exempt  from  attach- 
ment or  legal  process  under  the  laws  of  the  state  where  both 
parties  are  domiciled,  the  creditor  may  be  enjoined  from 
further  prosecuting  his  action  in  the  foreign  state,  it  being 
regarded  as  an  effort  to  evade  the  laws  of  the  state  of  his 
domicile. '^^  So,  also,  the  relief  will  be  granted  under  such 
circumstances  where  the  defendant  has  commenced  an  attach- 


them  from  doing  acts  which  will 
work  wrong  and  injury  to  others. 
.  .  .  As  the  decree  of  the  court 
in  such  cases  is  pointed  solely  at 
the  party,  and  does  not  extend  to 
the  tribunal  where  the  suit  or  pro- 
ceeding is  pending,  it  is  wholly 
immaterial  that  the  party  is  prose- 
cuting his  action  in  the  courts  of  a 
foreign  state  or  country.  If  the 
case  stated  in  the  bill  is  such  as  to 
render  it  the  duty  of  the  court  to 
restrain  a  party  from  instituting 
and  carrying  on  proceedings  in  a 
court  in  this  state,  it  is  bound  in 
like  manner  to  enjoin  him  from 
prosecuting  a  suit  in  a  foreign 
court."  Per  Bigelow,  C.  J.,  Dehon 
V.  Foster,  4  Allen,  545.  In  Vail  v. 
Knapp,  49  Barb.,  299,  it  is  said: 
"While,  as  a  general  rule,  the  pro- 
priety of  which  is  apparent,  the 
courts  of  this  state  decline  to  in- 
terfere by  injunction  to  restrain  its 
citizens  from  proceeding  in  an  ac- 
tion which  has  been  commenced 
in  the  court  of  a  sister  state,  yet 
there  are  exceptions  to  this  rule; 
and  when  a  case  is  presented  fair- 
ly constituting  such  exception,  ex- 
treme delicacy  should  not  deter  the 
court  from  controlling  the  conduct 


of  a  party  within  its  jurisdiction 
to  prevent  oppreesion  or  fraud. 
No  rule  of  comity  forbids  it.  .  .  . 
In  granting  the  injunction  we  deal 
with  parties  residing  in  this  state, 
and  do  not  seek  to  interfere  with 
or  attempt  to  control  the  action  of 
the  court  in  Vermont  in  which  the 
action  is  pending.  We  command 
our  own  citizens,  not  the  courts  or 
parties  residing  in  Vermont."  In 
Monumental  Savings  Assn.  v.  Fen- 
tress, 125  Fed.,  812,  where  a  suit 
was  pending  in  the  United  States 
Circuit  Court  to  cancel  plaintiff's 
subscription  to  corporate  bonds, 
an  injunction  was  granted  to  re- 
strain the  prosecution  of  an  action 
at  law  subsequently  instituted 
against  the  plaintiff  in  the  United 
States  Circuit  Court  of  another  cir- 
cuit for  the  recovery  of  the  amount 
of  the  subscription. 

12  Keyser  v.  Rice,  47  Md.,  203; 
Snook  V.  Snetzer,  25  Ohio  St.  516; 
Teager  v.  Landsley,  69  la.,  725,  27 
N.  W.,  739;  Hager  v.  Adams,  70  la., 
746,  30  N.  W.,  36;  Griggs  v.  Docter, 
89  Wis.,  161,  61  N.  W.,  761,  30  L. 
R.  A.,  360,  46  Am.  St.  Rep.,  824; 
Moton  V.  Hull,  77  Tex.,  80,  13  S. 
W.,  849,  8  L.  R.  A.,  722. 


120  INJUNCTIONS.  [chap.  II. 

ment  suit  in  a  foreign  state  for  the  purpose  of  gaining  a  pref- 
erence over  complainant  which  would  be  illegal  under  the  laws 
of  the  state  of  their  domicile.^  ^  go^  where  the  plaintiff  and 
defendant  are  residents  of  the  same  state,  the  latter  may  be 
enjoined  by  the  courts  of  that  state  from  prosecuting  actions 
against  complainant  in  the  courts  of  another  state  for  the 
purpose  of  evading  the  laws  of  the  state  of  their  domicile  and 
depriving  the  complainant  of  his  constitutional  immunity 
against  imprisonment  for  debt.^^  But  the  relief  in  such  cases 
is  predicated  upon  the  fact  that  the  plaintiff  and  defendant 
are  both  citizens  and  residents  of  the  same  state  and  that  the 
latter  is  seeking  to  evade  the  laws  of  that  state  by  resorting 
to  the  courts  of  another,  thereby  perpetrating  a  fraud  upon 
the  plaintiff.  And  where  the  creditor  in  an  attachment  is 
a  resident  of  the  state  in  which  the  attachment  is  brought,  the 
debtor,  proceeding  in  the  courts  of  his  own  state,  can  not 
enjoin  such  attachment  upon  the  ground  that  the  property  is 
exempt  under  the  laws  of  that  state.^-'' 

§  107.  Equity  declines  to  interfere  when  foreign  tribunal 
may  do  more  complete  justice.  While  the  English  doctrine,  as 
stated  in  preceding  sections,  is  well  established  and  is  generally 
recognized,  courts  of  equity  may  properly  refuse  to  interfere 
with  the  action  of  persons  litigating  in  other  states  if  it  is 
apparent  that  full  and  complete  justice  may  be  done  to  all 
parties  in  the  litigation  already  pending  in  the  sister  state. 
AVhere,  therefore,  a  suit  is  already  pending  in  one  state  con- 
cerning real  property  within  its  jurisdiction,  and  the  court 
in  which  such  suit  is  pending  may  render  full  relief  by  such  a 

i:>  Hazen    v.   Lyndonville     Bank,  Lambert,   49   La.  An.,   459,   21    So., 

70  Vt,  543,  41  Atl.,  1046,  67  Am.  St.  639. 

Rep.,  680;   Hayden  v.  Yale,  45  La.  i^  Miller  v.  Gittings,  85  Md.,  601, 

An.,  362,  12  So.,  633.    This  was  an  37   Atl.,   372,  37  L.  R.   A..   654,   63 

action   to   recover  the   proceeds  or"  Am.  St.  Rep.,  52. 

the  sale  of  the  attached  property.  i- Griffith  v.  Langsdale,  53  Ark., 

But  see  Commercial  Soap  Works  v.  71,  13  S.  W.,  733,  22  Am.  St.  Rep., 

182. 


CUAr.  II.]  ACTIONS  AT    LAW.  121 

decree  as  will  finally  determine  the  controversy,  a  court  of 
equity  in  another  state,  being  unable  by  reason  of  want  of 
jurisdiction  over  the  real  estate  and  over  some  of  the  parties 
to  the  cause  to  afford  full  relief,  will  refuse  to  restrain  the 
proceedings.ifi  And  upon  similar  principles  an  injunction  Avill 
not  be  granted  to  restrain  creditors  having  a  mortgage  upon 
property  in  a  foreign  country  from  proceeding  with  a  litiga- 
tion in  that  country  to  obtain  a  decision  of  the  courts  there 
touching  the  disposition  of  the  mortgaged  property.  In  such 
a  case  it  will  be  presumed  that  the  courts  of  the  foreign  coun- 
tr}'  are  better  advised  as  to  their  own  laws,  and  equity  will 
therefore  decline  to  interfere,  especially  when  the  foreign 
court  has  first  obtained  jurisdiction  of  the  matter.^'''  So  equity 
will  refuse  to  interfere  with  the  prosecution  of  a  foreclosure 
in  a  sister  state  upon  the  alleged  ground  that  the  view  of 
the  law  governing  the  rights  of  the  parties  which  would  be 
taken  by  the  supreme  court  of  that  state  differs  from  the  view 
of  the  Supreme  Court  of  the  United  States  or  of  the  state 
where  the  relief  is  sought,  the  presumption  being  that  the 
court  of  the  state  where  the  suit  is  pending  will  decide  accord- 
ing to  law  and  right.^^  And  the  English  Court  of  Chancery 
refused  to  restrain  a  creditor  of  a  bankrupt  in  England,  who 
had  not  proven  his  demand  in  bankruptcy  or  taken  any  pro- 
ceedings therein,  from  prosecuting  a  suit  against  the  bankrupt 
in  Scotland  for  the  enforcement  of  his  demand  out  of  real 
property  of  the  bankrupt  there  situated.^  ^  And  before  a 
court  of  equity  will  interfere  upon  an  interlocutory  motion 
to  enjoin  the  prosecution  of  a  suit  by  reason  of  a  decree  or 
judgment  in  a  foreign  country  upon  the  same  subject-mat- 
ter, it  should  be  well  satisfied  that  the  foreign  decree  does 
complete  justice  between  the  parties  and  covers  the  entire 
controversy."^ 

ifi  Harris  v.  Pullman,  84  111.,  20.     14   Am.    St.    Rep.,    397. 

1"  Moor  V.  Anglo-Italian  Bank,  if'  Pennell  v.  Roy,  3  De  G.,  M.  & 
10  Ch.   D.,   681.  G.,   126. 

IS  Carson  v.  Dunham,  149  Mass.,  -■"  Ostell  r.  Le  Page,  2  De  G.,  M. 
52,   20  N.  E.,  312.   3   L.   R.   A.,  203,     &  G.,   892. 


122  INJUNCTIONS.  [chap.  II. 

V.     State  and  Federal  Courts. 

§  108.     The  question  discussed  upon  principle. 

109.  Federal  courts  restricted  by  legislation  from  enjoining  proceed- 

ings in  state  courts. 

110.  Exceptions  to  the  rule  as  to  federal  courts;  injunction  in  aid  of 

removal. 

111.  When    state    courts  may  enjoin   proceedings   in   United    States 

courts. 

§  108.  The  question  discussed  upon  principle.  Questions 
of  much  nicety  and  of  not  a  little  difficulty  have  frequently 
arisen  touching  the  relative  powers  of  the  state  and  federal 
courts,  and  of  the  jurisdiction  of  the  one  to  interfere  by  the 
extraordinary  aid  of  an  injunction  with  the  action  of  parties 
litigant  in  the  other  tribunal.  The  jurisdiction  of  these  courts, 
although  deriving  their  powers  from  two  separate  and  dis- 
tinct sovereignties,  is  nevertheless  co-ordinate  in  many  of  the 
matters  which  give  rise  to  litigation  in  either  forum,  and  the 
consequent  danger  of  conflict  between  the  two  systems  lends 
to  this  branch  of  the  jurisdiction  of  equity  additional  impor- 
tance. Independent  of  legislation  or  of  judicial  authority, 
it  is  difficult  to  perceive  any  satisfactory  reason  why  the  same 
principles  should  not  apply  in  determining  whether  a  court  of 
equity,  state  or  federal,  should  restrain  the  action  of  parties 
litigant  in  the  courts  of  the  other  sovereignty  as  are  applica- 
ble between  courts  of  the  same  state  or  sovereignty.  The 
jurisdiction  in  this  class  of  cases  being,  as  already  shown, 
purely  in  personam,  and  the  court  which  grants  the  injunction 
in  no  manner  attempting  to  interfere  with  or  control  the 
action  of  the  court  whose  suitors  are  enjoined,  it  would  seem, 
upon  principle,  to  be  competent  for  a  court  of  equity,  state 
or  federal,  to  restrain  parties  who  are  within  its  jurisdiction 
and  amenable  to  its  process  from  using  the  machinery  of 
the  other  court  for  purposes  of  fraud,  hardship  or  oppres- 
sion. The  authority  of  the  decided  cases  does  not,  however, 
support  the  views  here  suggested;    and,  as  will  be  hereafter 


CHAP.  II.]  ACTIONS   AT   LAW.  123 

sho-wT3,  the  courts  have  usually  confined  themselves  in  the 
granting  of  injunctions  against  proceedings  in  the  other 
tribunal,  state  or  federal,  to  cases  where  such  relief  was  neces- 
sary to  protect  the  prior  jurisdiction  of  the  court  first  acquir- 
ing control  of  the  parties  and  of  the  subject-matter. 

§  109.  Federal  courts  restricted  by  legislation  from  enjoin- 
ing' proceedings  in  state  courts.  The  power  of  the  federal 
courts  to  interfere  by  injunction  with  actions  pending  in  the 
state  courts  was,  at  an  early  period  in  the  history  of  the  nation, 
limited  and  defined  by  legislation.  The  judiciary  act  of  1793  ^ 
prohibited  in  express  terms  the  granting  of  injunctions  to  stay 
proceedings  in  any  court  of  a  state.  This  prohibition  has 
been  embodied  in  the  Revised  Statutes  of  the  United  States 
in  the  following  provision:  **The  writ  of  injunction  shall 
not  be  granted  by  any  court  of  the  United  States  to  stay  pro- 
ceedings in  any  court  of  a  state,  except  in  cases  where  such 
injunction  may  be  authorized  by  any  law  relating  to  proceed- 
ings in  bankruptcy."-  Except  in  cases  arising  under  the 
bankrupt  laws  of  the  United  States,  where  the  paramount 
jurisdiction  of  the  federal  courts  has  been  frequently  protected 
and  enforced  by  enjoining  proceedings  against  the  estate  of  a 
bankrupt  in  the  state  courts,  the  courts  of  the  United  States 
have  generally  submitted  to  the  limitation  thus  prescribed 
by  Congress,  and  have  ordinarily  refused  to  interfere  by  in- 
junction with  the  action  of  parties  litigant  in  the  state 
courts.^     And  the  prohibition  contained  in  the  judiciary  act 

1  Act  of  Congress,  approved  s  Diggs  t?.  Wolcott,  4  Cranch,  171); 
March  2,  1793,  ch.  22,  §  5,  1  U.  S.  Chaffin  v.  City  of  St.  Louis,  4  Dill., 
Statutes  at  Large,  334,  335.  19;    Moore  v.  Holliday,  4  Dill.,  52; 

2  Revised  Statutes  U.  S.,  §  720;  Preeney  i\  First  National  Bank, 
1  U.  S.  Comp.  Stat.  1901,  p.  581.  3  McCrary,  622;  United  States  r. 
As  to  whether  this  provision  is  Parkhurst-Davis  Mercantile  Co., 
applicable  to  the  courts  of  the  Dis-  176  U.  S.,  317,  20  Sup.  Ct.  Rep., 
trict  of  Columbia,  thereby  pro-  423;  Gates  r.  Bucki,  4  C.  C.  A.,  116, 
hibiting  them  from  enjoining  pro-  53  Fed.,  961;  Rensselaer  &  S.  R. 
ceedings  in  state  courts,  see  Keane  Co.  v.  Bennington  &  R.  R.  Co.,  IS 
V.  Chamberlain,  14  App.  D.  C,  84.  Fed.  617. 


124  INJUNCTIONS.  [chap.  II, 

of  1793,  being  regarded  as  extending  to  all  cases  except 
where  otherwise  provided  by  the  bankrupt  laws  of  the  United 
States,  the  federal  courts  have  refused  to  enjoin  the  prose- 
cution in  the  state  courts  of  suits  concerning  the  settlement 
of  the  estates  of  decedents,  brought  by  persons  claiming  inter- 
ests therein.-*  And  this  prohibition  is  held  to  be  applicable 
to  probate  proceedings  in  the  administration  of  the  estate  of 
a  deceased  person,  and  a  federal  court  therefore  has  no  author- 
ity, upon  a  bill  filed  by  the  executor  and  a  legatee  under  the 
will  of  a  decedent,  probated  in  a  foreign  state,  to  enjoin  an 
administrator  appointed  by  a  state  court  from  distributing 
personalty  among  the  heirs  at  law  contrary  to  the  provisions 
of  the  will.-''  And  a  petition  for  a  receiver  in  aid  of  a  judg- 
ment rendered  in  a  state  court  falls  within  the  provision  of 
§  720  and  a  federal  court  is  therefore  without  jurisdiction  to 
enjoin  such  a  proceeding.*'  So  a  federal  court  has  no  jurisdic- 
tion to  restrain  a  police  officer  from  serving  warrants  of  arrest 
issued  by  a  state  court  for  the  violation  of  municipal  ordi- 
nances which  are  alleged  to  be  repugnant  to  the  constitution 
of  the  United  States.'^  And  the  circuit  courts  of  the  United 
States  have  no  jurisdiction  to  interfere  by  injunction  with  the 
possession  or  control  of  property  which  is  in  possession  of  a 
state  court  having  jurisdiction  over  the  matter.^  Nor  have 
these  courts  power  to  enjoin  the  execution  of  a  judgment  of  a- 
state  court  upon  the  ground  that  it  has  been  superseded  by 
a  writ  of  error  from  the  Supreme  Court  of  the  United  States, 
or  to  restrain  state  officials  or  others  from  disregarding  such 
supersedeas. '^ 

*  Haines    i'.   Carpenter,     1     Otto,  "  Yick   Wo  v.  Crowley,   26   Fed., 

254;  Dial  v.  Reynolds,  6  Otto,  340.  207. 

5  "Whitney  v.  Wilder,  4  C.  C.  A.,  ^  Hutchinson     v.    Green,     2     Mc- 

510,  54  Fed.,  554.  Crary,  471;   S.  C,  6  Fed.,  833;   Do- 

c  Mutual   Reserve  F.  L.  Assn.  v.  mestic  &  F.  M.  Society  v.  Hinman, 

Phelps.  190  U.  S.,  147,  23  Sup.  Ct.  13  Fed.,  161. 

Rep.,  707,  affirming  S.  C,  50  C.  C.  « Murray    v.    Overstolz,     1     Mc- 

A.,  339,  112  Fed.,  453.  Crary.  606;   S.  C,  8  Fed.,  110. 


CPIAP.  II. J  ACTIONS   AT   LAW.  125 

§110.  Exceptions  to  the  rule  as  to  federal  courts;  injunc- 
tion in  aid  of  removal.  It  is  to  be  observed,  however,  that  the 
restriction  thus  imposed  upon  the  federal  courts  by  the  judi- 
ciary act  of  1793  is  construed  as  limited  to  actions  begun  in 
the  state  courts  before  proceedings  are  instituted  in  the  federal 
courts,  and  is  not  applicable  where  the  jurisdiction  of  the 
federal  courts  has  first  attached.^*^  And  the  test  as  to  the 
priority  of  jurisdiction  would  seem  to  be  not  the  date  of  com- 
mencing the  suit  but  of  acquiring  jurisdiction  of  the  defendant 
by  personal  service  of  process.^^  And  the  federal  courts  being 
empowered  to  issue  all  writs  which  may  be  necessary  for  the 
exercise  of  their  respective  jurisdictions,^-  it  is  held  that 
when  they  have  acquired  jurisdiction  over  a  corporation  in 
an  action  to  compel  it  to  respond  to  plaintiff  for  a  pecuniary 
demand,  they  may  enjoin  the  corporation  from  taking  steps 
in  a  state  court  to  procure  its  dissolution.^^  So  a  federal 
court,  having  first  acquired  jurisdiction,  may  enjoin  the  attor- 
ney-general of  a  state  from  instituting  in  the  courts  of  the 
state  proceedings  for  the  collection  of  a  penalty  imposed  by  an 
alleged  unconstitutional  law  of  the  state. ^^    So  where  a  cause 

10  French  v.  Hay,  22  Wal.,  250;  power  of  the  federal  courts,  which 
Julian  V.  Central  Trust  Co.,  193  have  first  acquired  jurisdiction  of 
U.  S.,  93,  24  Sup.  Ct.  Rep.,  399,  the  parties  and  of  the  subject-mat- 
affirming  S.  C,  53  C.  C.  A.,  438,  ter  by  prior  service  of  process,  to 
115  Fed.,  956;  Fisk  v.  Union  Pa-  restrain  the  parties  from  proceed- 
cific  R.  Co.,  10  Blatch.,  518;  Texas  ing  as  to  the  same  subject-matter 
&  P.  R.  Co.  V.  Kuteman,  4  C.  C.  A.,  in  the  state  courts,  see  Union  M. 
503,  54  Fed.,  547;  Garner  v.  Sec-  L.  I.  Co.  v.  University  of  Chicago, 
ond  National  Bank,  16  C.  C.  A.,  86,  10  Biss.,  191. 

67  Fed.,  833;  Iron  Mountain  R.  Co.  "  Pitt   v.    Rogers,   43   C.   C.    A., 

V.  City  of   Memphis,   37   C.   C.  A.,  600,  104  Fed.,  387. 

410,  96  Fed.,  113;  Sharon  v.  Terry,  12  Act  of  Congress  of  September 

36    Fed.,    337;    Wadley    v.    Blount,  24,   1789,  1   U.   S.   Statutes,  81,  82. 

65  Fed.,  667;    Lanning  v.  Osborne,  Revised    Statutes   U.    S.,    §    716;    1 

79  Fed.,  657;    Starr  v.  Chicago,  R.  U.  S.  Comp.  Stat.  1901,  p.  580. 

I.  &  P.  R.  Co.,  110  Fed.,  3;   Stew-  i^^  Fisk  v.  Union   Pacific  R.  Co., 

art   V.   Wisconsin   Central    R.   Co.,  10  Blatch,  518. 

117  Fed.,  782;   Union  Life  Ins.  Co.  i*  Starr   v.  Chicago,   R.    I.  &   P. 

V.  Riggs,  123  Fed.,  312.    As  to  the  R.  Co.,  110  Fed.,  3.  In  the  proceed- 


126  INJUNCTIONS.  [CIIAP.  II. 

is  properly  removed  from  a  state  to  a  federal  court  under 
the  removal  acts,  and  the  latter  annuls  and  vacates  a  decree 
previously  rendered  in  the  state  court  and  dismisses  the  cause 
for  vrant  of  equity,  the  court  may  properly  enjoin  the  com- 
plainant who  has  brought  suit  upon  such  decree  in  another 
state  from  proceeding  to  enforce  the  decree  by  such  action. 
In  such  a  case — the  court  having  jurisdiction  in  personam 
over  the  parties,  and  having  control  over  the  cause— it  will 
not  permit  its  jurisdiction  to  be  trenched  upon  by  any  other 
tribunal,  and  may  properly  enjoin  a  party  to  the  cause  from 
proceeding  beyond  the  territorial  jurisdiction  of  the  court.^^ 
So  where  plaintiff  in  a  replevin  suit  brought  in  a  state  court 
properly  removes  it  to  the  federal  court,  and  there  obtains 
judgment  in  his  favor,  but  the  state  court  proceeds  to  try  the 
cause  and  renders  judgment  against  the  plaintiff,  and  an 
action  is  then  brought  in  the  state  court  upon  the  replevin 
bond,  the  federal  court  may  enjoin  the  prosecution  of  such 
action,  the  relief  being  merely  ancillary  to  its  jurisdiction 
already  acquired,  and  necessary  to  give  proper  effect  to  its 
own  judgment.^ ^  And  when  a  cause  instituted  in  a  state  court 
has  been  properly  removed  to  the  federal  court  and  is  there 

ing  which  was  enjoined  by  the  de-  Co.  v.  Peoria  &  P.  U.  R.  Co.,  82 
cree  of  the  federal  court  in  this  Fed.,  943,  instead  of  removing  the 
case,  the  Supreme  Court  of  Neb-  cause  to  the  federal  court  and  then 
raska  refused  to  recognize  the  ju-  filing  a  bill  for  an  injunction  an- 
risdiction  of  the  United  States  ciliary  to  the  suit  at  law,  an 
court  to  grant  the  injunction.  Their  original  bill  was  filed  in  the  fed- 
decision,  however,  is  not  based  eral  court  seeking  to  restrain  the 
upon  the  inhibition  of  §  720  but  action  at  law  in  the  state  court, 
upon  the  ground  that  such  a  pro-  The  proper  practice,  however,  as 
ceeding  was  a  suit  against  a  state  suggested  in  the  text,  undoubted- 
within  the  meaning  of  the  11th  ly  is  to  remove  the  cause  to  the 
Constitutional  Amendment.  State  federal  court  and  then  to  file  an 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  61  injunction  bill  as  ancillary  there- 
Neb.,  545,  85  N.  W.,  556;  Same  v.  to.  By  so  doing,  legal  rights  re- 
Same,  62  Neb.,  123,  87  N.  W.,  188.  main  for  their  determination  in  a 
i"- French  v.  Hay,  22  Wal.,  250.  legal  forum  and  the  right  of  trial 
1"  Dietzch  v.  Huidekoper,  103  by  jury  is  preserved. 
U.  S.,  494.    In  Terre  Haute  &  I.  R. 


CHAP.  II.]  ACTIONS   AT   LAW,  127 

proceeding  to  judgment,  defendant  may,  by  bill  filed  in  the 
federal  court  ancillary  to  the  main  action,  restrain  the  plain- 
tiff from  the  further  prosecution  of  the  suit  in  the  state 
court.^'''  So,  too,  the  United  States  courts  may  restrain  a  state 
officer  from  such  proceedings  under  a  statute  of  a  state  as 
would  destroy  a  franchise  created  by  the  United  States.^  ^  So, 
in  a  proper  case,  they  may  enjoin  proceedings  in  their  own 
forum  until  the  determination  of  the  same  subject-matter  in 
a  suit  between  the  parties  in  a  state  court.^^  A  further  excep- 
tion has  been  recognized  to  the  provision  of  §  720  in  the  case 
of  a  petition  filed  by  a  ship-owner  in  the  United  States  district 
court  of  admiralty  for  the  limitation  of  his  liability.  In  such 
a  case  the  admiralty  court  may  properly  enjoin  the  prosecu- 
tion in  a  state  court  of  an  action  previously  commenced  against 
the  ship-owner  for  the  purpose  of  enforcing  his  personal  lia- 
bility.2o 

§  111.  When  state  courts  may  enjoin  proceedings  in  United 
States  courts.  As  regards  the  power  of  the  state  courts  to 
interfere  by  injunction  with  the  action  of  suitors  in  the  courts 
of  the  United  States,  while  no  satisfactory  reason  can  be 
perceived  why  they  should  not  be  governed  by  the  same  prin- 
ciples which  apply  in  administering  relief  by  injunction 
against  vexatious  or  unwarranted  litigation  in  courts  of  the 
same  or  of  a  foreign  state,  they  have  nevertheless  gener- 
ally refused  to  interfere  by  injunction  to  restrain  actions  in 
the  federal  tribunals. ^i     Indeed,  the  doctrine  has  been  broadly 

17  Madisonville   Traction   Co.    v.  332,  an  injunction  was  refused  in 

St.  Bernard  M.  Co.,  196  U.  S.,  239,  such  a  case,  upon  the  ground  that 

25  Sup.  Ct.  Rep.,  251;  Baltimore  &  it  was  unnecessary  to  uphold  the 

0.  R.  Co.   V.  Ford,  35    Fed.,    170;  jurisdiction  of  the  federal  court. 

Abeel   v.   Culberson,   56   Fed.,   329.  is  Osborn  v.  United  States  Bank, 

Contra,  Coker  v.  Monaghan  Mills,  9  Wheat.,  738;    State  Lotter  Co.  v. 

110  Fed.,  803;  Missouri,  K.  &  T.  R.  Fitzpatrick,  3  Woods,  222. 

Co.  V.  Scott,  4  Woods,  170;    S.  C,  i9  City     Bank     v.      Skelton,      2 

13  Fed.,  793,  where  it  is  held  that  Blatch.,  14;    S.  C,  lb.,  26. 

the    federal    courts    are    powerless  20  in  re  Whitelaw,  71  Fed.,  733. 

to    interfere    in    such    cases.      And  21  Schuyler    v.    Pelissier,     3     Ed. 

in  Penrose  v.  Penrose,  17  Blatch.,  Ch.,  191;  Coster  v.  Griswold,  4  Ed; 


128  INJUNCTIONS,  [chap.  II. 

asserted  that  the  state  courts  are  wholly  destitute  of  any 
power  or  authority  for  such  interference.^^  The  better  doc- 
trine, however,  undoubtedly  is  that  the  state  courts  may, 
for  the  purpose  of  protecting  their  jurisdiction  when  it  has 
first  attached  over  the  controversy,  enjoin  parties  who  are 
amenable  to  their  process  and  subject  to  their  jurisdiction 
from  afterward  litigating  the  same  subject  in  the  federal 
courts.23  Thus,  when  a  state  court  has  first  acquired  juris- 
diction of  the  subject-matter  and  of  the  parties,  it  may  enjoin 
the  prosecution  of  a  subsequent  suit  by  the  defendant  concern- 
ing the  same  subject-matter  in  a  federal  court  in  another 
state. 2-*  So,  if  complainant,  having  begun  his  equitable  action 
in  a  state  court,  afterward  sues  at  law  concerning  the  same 
subject-matter  in  a  United  States  court,  and  defendant  has  a 
whole  or  partial  defense,  of  which  he  can  not  avail  in  the 

Ch.,  364;  Phelan  v.  Smith,  8  Cal.,  extraordinary  powers  by  injunc- 
520.  tion,  have  never  assumed  to  en- 
2a  Phelan  v.  Smith,  8  Cal.,  520;  join  the  court  itself,  but  only  to 
Riggs  V.  Johnson  Co.,  6  Wal.,  166.  arrest  the  action  of  the  parties 
And  in  the  opinion  of  Mr.  Justice  litigant;  and  this  in  the  exercise 
Clifford  in  United  States  v.  Keo-  of  a  jurisdiction  strictly  in  per- 
kuk,  6  Wal.,  514,  it  is  said  that:  sonam.  In  Holstein  v.  County 
"Orders  for  an  injunction  are  as  Board,  64  S.  C,  374,  42  S.  E.,  180, 
inoperative  upon  the  process  of  the  it  was  held  that  where  the  United 
circuit  court  (of  the  United  States  court  had  sustained  the 
States)  for  that  district  as  they  validity  of  a  statute  authorizing 
-would  be  if  directed  to  the  process  the  issuing  by  a  municipal  corpor- 
of  a  circuit  court  in  any  other  ation  of  railway-aid  bonds,  a  state 
district  of  the  United  States,  be-  court,  being  bound  to  give  full 
cause  the  state  and  federal  courts  faith  and  credit  to  the  judgment 
in  their  sphere  of  action  are  inde-  of  the  federal  court,  could  not  en- 
pendent  of  any  such  control."  join  the  issuing  of  bonds  by  the 
While  the  doctrine  as  thus  stated"  municipality  for  the  purpose  of 
is  undoubtedly  true  as  regards  any  paying  a  balance  due  upon  such 
<^ffort  on  the  part  of  a  state  or  railway-aid  bonds, 
federal  court  to  operate  by  injunc-  -•'' Akerly  v.  Vilas,  15  Wis.,  401; 
tion  upon  the  process  of  any  other  Home  Insurance  Co.  v.  Howell,  9 
I  ribiinal,  state  or  national,  it  should  C.  E.  Green,  238. 
h(!  l)orne  in  mind  that  courts  of  -^  Home  Insurance  Co.  v.  How- 
f-quity,    in    the   exercise     of     their  ell,  9  C.  E.  Green,  238. 


CHAP.  II.]  ACTIONS   AT    LAW.  129 

action  at  law,  complainant  may  be  enjoined  from  proceeding 
in  the  federal  court.^^  And  where  a  state  court  has  properly 
acquired  jurisdiction  over  an  action  for  the  recovery  of  dam- 
ages ag-ainst  a  ship-owner  in  personam  for  the  loss  of  goods, 
and  a  federal  court  afterward  entertains  proceedings  in  admir- 
alty against  the  vessel  by  which  the  goods  were  lost,  and 
enjoins  plaintiffs  in  the  action  in  the  state  court  from  further 
proceedings,  plaintiffs  will  still  be  allowed  by  the  state  court 
to  proceed  with  their  action  in  that  tribunal,  and  it  will  refuse 
to  enjoin  them  from  so  proceeding.^^  But  while  a  state  court 
may,  in  a  proper  case,  restrain  defendants  within  its  jurisdic- 
tion from  proceeding  at  law  for  the  recovery  of  real  property 
within  the  state,  yet  as  to  defendants  not  served  with  process 
and  residing  in  other  states  it  will  not  enjoin  them  from  suing 
in  the  federal  courts.-" 

25Akerly  v.  Vilas,  1.5  Wis.,  401.  -^  Worthington  v.  Lee,    61    Md., 

26  Knowlton  v.  Providence  &  N.     530. 
Y.  S.  Co.,  53  N.  Y.,  76. 


CHAPTER  III. 

OF  INJUNCTIONS  AGAINST  JUDGMENTS. 

I.  General  Features  of  the   Jurisdiction §  112 

II.  Defense  at  Law lt>5 

III.  Judgments  Obtained  Through  Fraud 190 

IV.  Accident,  Mistake,  Ignorance  and  Surprise 209 

V.  Irregular,  Erroneous  and  Void  Judgments 225 

VI.     Judgments  upon  Usurious  Contracts 232 

VII.     Judgments    upon    Gaming    Contracts 235 

VIII.     Set-offs 237 

IX.     Judgments   as   Affecting   Title 245 

X.     Court  in  Which  the  Judgment  was  Rendered 265 

XI.     Injunctions    against    Awards 273 

XII.     Judgments  by  Default   and  Confession 277 

I.     General  Features  of  the  Jurisdiction. 

§  112.     History  of  the  jurisdiction. 

113.  Not  a  favorite  jurisdiction. 

114.  Judgment  must  be  against  conscience;  diligence  required;  mer- 

its must  appear. 

115.  New  trial;    after    discovered   evidence;    plaintiff  must  be  free 

from  fault. 

116.  The  same;    perjury  no  ground  for  relief;    false  answer  under 

oath. 

117.  The  same;   what  must  be  shown. 

118.  Relief  not  based  on  error  in  judgment;  not  allowed  on  informa- 

tion and  belief. 

119.  Sale  under  execution  against  third  person,  when  enjoined. 

120.  The  same;    relief  not   allowed   where  remedy  at  law;    not  al- 

lowed against  sale  of  real  estate. 

121.  Excessive  levy  not  enjoined. 

122.  Sale  of  personal   property  exempt  from  execution;   conflict  of 

authority. 
122a.  Sale  of  property  of  quasi-public  corporation  enjoined. 

123.  Judgment  paid  in  whole  or  in  part;   conflict  of  authority  as  to 

right  to  injunction. 

124.  Jurisdiction  not  exercised  in  criminal  matters. 

130 


CHAP.  III.]  AGAINST   JUDGMENTS.  131 

§  125.  Judgment  not  enjoined  because  of  want  of  jurisdiction. 

126.  Good   defense  to    merits  must  be  shown. 

127.  Effect  of  injunction  on  lien  of  judgment  and  execution. 

128.  Release  of  errors  in  judgment  enjoined. 

129.  Ttie  same. 

130.  Amount  due  must  be  paid  or  tendered. 

131.  Creditor    witliout    judgment    not    allowed    to    enjoin    sale    of 

debtor's   property   under   execution. 

132.  Requisites  of  bill;   parties  necessary. 

133.  When  injunction  refused;    writ  of  error  no  bar  to  injunction. 

134.  Failure   of   consideration;    accommodation   indorser. 

135.  Injunction  against  sale  under  execution,  when  operative;   duty 

of  sheriff;    amount  of  judgment  need   not  be  brought  into 
court. 

136.  Effect  of  death  of  plaintiff  or  defendant. 

137.  Injunction  for  or  against  United   States. 

138.  When  tender  necessary;  injunction  as  to  part  of  judgment. 

139.  Minimum    limit    of    jurisdiction;    judgment    in    replevin;    two 

funds. 

140.  Mortgagees    of   railroad    refused    injunction   against   judgment 

creditor;    superior   equitable  title. 

141.  Sale  of  heir-looms,  injunction  refused;    valuable   work  of  art. 

142.  Effect  of  injunction. 

143.  Forbearance  to  principal  as  ground  of  injunction  in  behalf  of 
surety. 

144.  Judgment  against   administrator,   when   enjoined. 

145.  Effect  of  statute  requiring  payment  of  judgment  Into  court. 

146.  Failure  to  answer  material  charge;  agreement  by  third  person 

to  pay  execution. 

147.  Judgment  upon  bonds  for  purchase  money,  injunction  refused. 

148.  Judgment  against  city,  when  enjoined. 

149.  Defiance   of  courts  effect   of. 

150.  When   sheriff  not  enjoined  because  of  writ  of  error. 

151.  Arrangement  between  judgment  debtors,  effect  of;   transfer  of 

judgment  by  creditor. 

152.  Guardianship. 

153.  Joinder  of  parties. 

154.  Second  execution  pending  appeal  from  injunction  may  be  en- 

joined. 

155.  Injunction  as  between  holder  and  indorser  of  note. 

156.  Execution  against  defaulting  tax  collector  not  enjoined. 

157.  Judgments  in  criminal   proceedings  not  enjoined. 

158.  Mechanics'   lien   proceedings. 

159.  Injunction    to    restrain   sheriff   from   paying   money,   bond   re- 

quired. 


132  INJUNCTIONS.  [chap.  III. 

§  160.     Sale  of  good-will  of  business,  violation  of  agreement  concern- 
ing. 
160a.  Assignee  of  chose  in  action. 

161.  Judgment  on  dismissal  of  injunction  bill. 

162.  Injunction  dissolved  on  answer  denying  bill;  new  trial  at  law; 

newly  discovered  evidence. 

163.  Damages  upon  dissolution. 

164.  Effect   of    dissolution;    when    decree   for   amount    of   judgment 

erroneous. 

§  112.  History  of  the  jurisdiction.  The  jurisdiction  of 
equity  to  stay  proceedings  at  hiw  after  judgment  recovered  is 
of  ancient  origin,  and  although  now  established  beyond  dis- 
pute it  was  formerly  the  cause  of  frequent  and  violent  contests 
between  the  chancellors  and  common  law  judges.  It  was 
insisted  by  the  latter  that  after  verdict  equity  was  powerless 
to  enjoin  the  proceedings,  and  that  the  Court  of  King's  Bench 
would  not  permit  a  judgment  creditor  to  be  enjoined  from 
following  up  his  judgment  at  law.  The  jurisdiction  may  be 
distinctly  traced  to  the  beginning  of  the  reign  of  Edward  the 
Fourth,  and  its  assertion  constituted  one  of  the  articles  of 
impeachment  against  Cardinal  Wolsey  during  the  reign  of 
Henry  the  Eighth.  It  was  not  definitely  established,  however, 
until  the  reign  of  James  the  First,  when  a  violent  contest  arose 
between  Lord  Ellesmere,  who  then  held  the  Great  Seal,  in  favor 
of  the  jurisdiction,  and  Lord  Chief  Justice  Coke  against  it.  A 
reference  was  had  to  five  of  the  most  eminent  lawyers  of  that 
time,  who  reported  a  series  of  precedents  in  favor  of  the  right 
to  interfere,  and  that  there  were  cases  of  its  exercise  even  after 
execution.  The  report  being  confirmed  by  the  King,  an  end 
was  had  to  the  discussions  that  had  so  h)ng  prevailed,  and  the 
jurisdiction  has  never  since  been  (juestioned.' 

'  Woodes.,  Lect.  6,  p.  186;   3  lb.,  although    the     growing     encroach- 

56,  p.   398;    1  Spence's  Eq.  Jur.,  p.  ments  of  the  chancellors  in  this  di- 

674;    ]    Hallam's  Const.    Hist.,  340.  rection  were  stoutly  resisted  by  the 

Illustrations  of  relief  by  injunction  common   law   judges.     In   Michael- 

against  judgments  at  law  may  be  mas  term,  Edward  IV.,  A.  D.,  1483, 

found  in  the  reign  of  Edward  IV.,  Ix)rd   Chancellor    Thomas    Rother- 


CHAP.  111.]  AGAINST   JUDGMENTS.  133 

§  113.  Not  a  favorite  jurisdiction.  The  jurisdiction,  al- 
tliough  well  established,  is  not  regarded  as  a  favorite  one  with 
courts  of  equity.  A  bill  seeking  relief  of  this  nature  is 
scrutinized  with  great  jealousy,  and  the  grounds  upon  which 
the  interference  will  be  allowed  are  confessedly  somewhat  nar- 
row and  restricted.  It  will  not  suffice  to  show  that  injustice 
has  been  done  by  the  judgment  against  which  relief  is  sought, 
but  it  must  also  appear  that  this  result  was  not  caused  by 
any  inattention  or  negligence  on  the  part  of  the  person  ag- 
grieved ;  and  he  must  show  a  clear  case  of  diligence  to  en- 
title himself  to  an  injunction.-     The  object  of  the  injunction 

am  had  granted  an  injunction  af-  returnable  before  us;  and  when  it 

ter  verdict  to  restrain  the  plaintiff  is  returned  before  us,  we  will  dis- 

from   proceeding  to    judgment    in  charge  him,"     adding     that     they 

the  King's  Bench.     The  verdict  in  would  do  all  they  could   to  assist 

question  having  been  rendered  at  him.      Fairfax,   J.,    said    that   they 

nisi  prius,  the  matter  came  on  be-  would  go  to  the  chancellor  and  ask 

fore    the   King's    Bench    in     bank,  him    to    dissolve     the     injunction, 

when  Hussey,  C.  J.,  asked  counsel  But  they  added  that,  if  the  chan- 

for  plaintiff  if  they  wished  to  pray  cellor   wotild   not   dissolve   the    in- 

judgment  according  to  the  verdict;  junction,  notwithstanding    it,  they 

to  which  they    replied     that    they  would  grant  judgment  if  the  party 

were  doubtful  of  violating  the  in-  prayed   it. 

junction — otherwise  they  would  ^  Robuck  y.  Harkins,  38  Ga.,  174; 
pray  judgment.  Fairfax,  J.:  "Not-  Slack  v.  Wood,  9  Grat.,  40;  Bate- 
withstanding  the  injunction,  judg-  man  v.  Willoe,  1  Sch.  &  Lef.,  201; 
ment  might  be  prayed,  for  if  the  Telford  v.  Brinkerhoff,  163  111.,  439, 
injunction  was  against  the  plaint-  45  N.  E.,  156;  Phillips  v.  Pullen, 
iff,  still  his  attorney  might  pray  45  N.  J.  Eq.,  5,  16  Atl.,  9;  Brick 
his  judgment,  or  e  contra."  Hus-  v.  Burr,  47  N.  J.  ..q.,  189,  19  Atl.,* 
sey,  C.  J.,  announced  that  they  842;  Spokane  Coop.  M.  Co.  v.  Pear- 
had  communed  over  the  matter  son,  28  Wash.,  118,  68  Pac,  165. 
and  saw  no  difficulty  that  would  See  also  Boley  v.  Griswold,  2 
come  to  the  party  if  he  prayed  Mont.,  447;  Stilwell  v.  Carpenter, 
judgment,  since  the  penalty  men-  59  N.  Y.,  414,  reversing  S.  C,  1 
tioned  in  the  injunction  could  not  Thomp.  &  C,  615;  Cairo  &  F.  R. 
be  levied  at  law;  and  there  was  Co.  v.  Titus,  12  C.  E.  Green,  102; 
nothing  left  but  imprisonment  in  Morris  v.  Edwards,  62  Tex.,  205. 
the  Fleet;  and  if  the  chancellor  The  general  principle  upon  which 
should  commit  a  man  to  the  Fleet,  the  relief  is  founded  is  well  stated 
"we    will    grant   a   habeas    corpus,  by  Lord  Redesdale  in  Bateman  v. 


134 


INJUNCTIONS. 


[chap.  III. 


is  to  prevent  the  person  against  whom  it  issues  from  availing 
himself  of  an  unfair  advantage,  resulting  from  fraud,  acci- 
dent, mistake  or  otherwise,  the  enforcement  of  which  is 
against   conscience.^ 

§  114.  Judgment  must  be  against  conscience ;  diligence  re- 
quired; merits  must  appear.  The  general  principle  underly- 
ing the  jurisdiction  is  that  it  must  be  against  conscience  to 
execute  the  judgment  sought  to  be  enjoined.  And  it  must 
clearly  appear  that  the  person  aggrieved  could  not  avail  him- 
self at  law  of  the  equities  relied  upon  to  enjoin  the  judg- 
ment; or,  if  he  was  in  a  position  to  avail  himself  of  such 
equities  in  defense  of  the  action  at  law,  that  he  was  pre- 
vented from  so  doing  by  accident,  mistake  or  surprise,  or  by 
fraud  of  the  adverse  party  unmixed  with  laches  or  negligence 
of  his  own.*     In  accordance  with  this  principle  a  judgment 


Willoe,  1  Sell.  &  Lef.,  201,  as  fol- 
lows: "It  is  not  sufficient  to  show 
that  injustice  has  been  done,  but 
that  it  has  been  done  under  cir- 
cumstances which  authorize  the 
court  to  interfere.  Because  if  a 
matter  has  been  already  investi- 
gated in  a  court  of  justice  accord- 
ing to  the  common  and  ordinary 
rules  of  investigation,  a  court  of 
equity  can  not  take  on  itself  to 
enter  into  it  again.  .  .  .  Thf^. 
Inattention  of  parties  in  a  court  of 
law  can  scarcely  be  made  a  sub- 
ject for  the  interference  of  a  court 
of  equity.  There  may  be  cases 
cognizable  at  law,  and  also  in 
equity,  and  of  which  cognizance 
can  not  be  effectually  taken  at 
Vaw;  and  therefore  equity  does 
sometimes  interfere,  as  in  cases 
of  complicated  accounts,  where  the 
party  has  not  made  defense  be- 
cause it  was  impossible  for  him 
to    do    it    effectually    at     law;     so 


where  a  verdict  has  been  obtained 
by  fraud,  or  where  a  party  has  pos- 
sessed himself  improperly  of  some- 
thing by  means  of  which  he  has  an 
unconscientious  advantage  at  law. 
which  equity  will  either  put  out  of 
the  way  or  restrain  him  from 
using.  But  without  circumstances 
of  that  kind  I  do  not  know  that 
equity  ever  does  interfere  to  grant 
a  trial  of  a  matter  which  has  been 
already  discussed  in  a  court  of 
law — a  matter  capable  of  being  dis- 
cussed there,  and  over  which  the 
court  of  law  had  full  jurisdiction." 

3  Little  V.  Price,  1  Md.  Ch.,  182; 
Pearce  v.  Olney,  20  Conn.,  544; 
Stanton  v.  Embry,  46  Conn.,  595. 

*  Wingate  v.  Haywood,  40  N.  H., 
437;  Wierich  v.  De  Zoya,  2  Gilm., 
385;  Wright  v.  Eaton,  7  Wis.,  595; 
Ableman  v.  Roth,  12  Wis.,  81;  Lit- 
tle V.  Price,  1  Md.  Ch.,  182;  Slack 
V.  Wood,  9  Grat.,  40;  Marine  Ins. 
Co.   V.   Hodgson,    7    Cranch,    332; 


CHAP.  III.] 


AGAINST   JUDGMENTS. 


135 


will  not  be  enjoined  where  there  is  no  evidence  of  a  good  de- 
fense to  the  merits,  or  that  the  judgment  is  contrary  to  equity 
and  against  conscience.^  A  fortiori  will  the  court  refuse  to  in- 
terfere with  the  enforcement  of  a  judgment  where  it  would 
be  against   equity   and  good   conscience  to   enjoin   it.*^     And 


Dugan  V.  Cureton,  1  Ark.,  31;  An- 
drews V.  Fenter,  lb.,  186;  Watson 
V.  Palmer,  5  Ark.,  501;  Conway  v. 
Ellison,  14  Ark.,  360;  Bently  v. 
Dillard,  6  Ark.,  79;  Hempstead  v. 
Watkins,  lb.,  317;  Menifee's  Ad- 
ministrators V.  Ball,  7  Ark.,  520; 
McCann  v.  Otoe  Co.,  9  Neb.,  324; 
Kevins  v.  McKee,  61  Tex.,  412; 
Headley  v.  Bell,  84  Ala.,  346,  4  So., 
391;  Darling  v.  Mayor,  51  Md.,  1; 
Gould  V.  Loughran,  19  Neb.,  392, 
27  N.  W.,  397;  Knox  County  v. 
Harshman,  133  U.  S.,  152,  10  Sup. 
Ct.  Rep.,  257;  Skirving  v.  National 
Life  Ins.  Co.,  8  C.  C.  A.,  241,  59 
Fed.,  742;  Phillips  v.  Pullen,  45  N. 
J.  Eq.,  5,  16  Atl.,  9;  Brick  v.  Burr, 
47  N.  J.  Eq.,  189,  19  Atl.,  842; 
Bailey  v.  Stevens,  11  Utah,  175,  39 
Pac,  828. 

5Ableman  v.  Roth,  12  Wis.,  81; 
Hazeltine  v.  Reusch,  51  Mo.,  50; 
Ratto  V.  Levy,  63  Tex.,  278;  Davis 
V.  Overseer  of  the  Poor,  40  N.  J 
Eq.,  156;  Muse  v.  Wafer,  29  Kan. 
279;  Wilson  v.  Shipman,  34  Neb. 
573,  52  N.  W.,  576,  33  Am.  St.  Rep. 
660;  Lininger  v.  Glenn,  33  Neb. 
187,  49  N.  W.,  1128.  See  also  Mas 
terson  v.  Ashcom,  54  Tex.,  324.  In 
Ableman  v.  Roth,  12  Wis.,  81,  the 
ground  relied  upon  in  support  of 
the  injunction  to  the  judgment  at 
law  was  that  it  was  obtained 
through  trickery  of  plaintiff's  at- 
torneys in  forcing  the  case  to  trial 
in  violation  of  a  verbal  agreement 
to   the   contrary.       There   was   no 


evidence  offered  of  a  good  defense 
at  law  upon  the  merits.  Dixon, 
C.  J.,  says:  "Upon  the  second  rea- 
son we  say  that  all  courts  and 
writers  agree  that  equity  inter- 
feres to  stay  proceedings  at  law 
only  to  prevent  injustice  by  the 
unfair  use  of  the  process  of  the 
courts  in  which  proceedings  are 
pending.  The  fundamental  and 
governing  principle  is  that^^it  is 
against  conscience  to  permit  the 
party  enjoined  to  proceed.  In  case 
of  a  judgment  it  must  be  shown 
to  be  against  conscience  to  allow 
it  to  be  executed;  otherwise  the 
powers  of  the  court  will  not  be 
called  into  exercise.  In  addition 
to  this,  the  injured  party  must 
show  either  that  he  could  not  have 
availed  himself  of  the  facts  which 
make  it  unjust  in  the  court  of  law, 
or  that  he  was  prevented  from  so 
doing  by  fraud,  accident  or  mis- 
take, without  negligence  on  the 
part  of  himself  or  his  agents  (2 
(Story's  Eq.  Jur.,  §  887,  and  cases 
there  cited).  Courts  of  equity  will 
not  interfere  to  grant  a  new  trial 
where  no  substantial  right  has 
been  lost,  and  no  unfair  advan- 
tage gained,  simply  because  by 
some  trick  or  artifice  a  judgment 
which  is  just  and  equitable  in 
itself  has  been  obtained  in  advance 
of  the  time  when  it  would  other- 
wise  have  been  rendered." 

fi  Skirving  v.  National  Life  Ins. 
Co.,  8  C.  C.  A.,  241,  59  Fed.,  742. 


136  INJUNCTIONS.  [CIIAI'.  HI. 

where  complainant  fails  to  show  due  diligence  in  availing  him- 
self of  his  defense  at  law,  an  injunction  already  granted  may 
be  dissolved,  even  though  no  answer  is  yet  filed,  it  having 
been  improperly  awarded  in  the  first  instanceJ  And  much 
stronger  proof  of  diligence  and  freedom  from  fault  is  required 
where  it  is  sought  to  enjoin  the  enforcement  of  a  judgment 
than  upon  a  motion  for  a  new  trial  in  the  court  in  which  the 
judgment  was  rendered.^  And,  in  general,  the  lack  of  reason- 
able diligence  upon  the  part  of  a  defendant  in  looking  aftei- 
his  interests  in  a  pending  action  at  law  will  be  sufficient  to 
prevent  him  from  obtaining  equitable  relief  against  a  judg- 
ment rendered  against  him."  And  unless  required  so  to  do  by 
motives  of  public  policy  the  court  never  will,  against  equity 
and  conscience,  arrest  the  progress  of  proceedings  at  law.^" 

§115.  New  trial;  aftsr  discovered  evidence;  plaintiff  must 
be  free  from  fault.  The  jurisdiction  under  discussion  is  fre- 
quently exercised  by  courts  of  equity  upon  a  bill  whose  pur- 
pose is  to  procure  a  new  trial  in  the  action  at  law  as  well  as 
to  enjoin  the  judgment  already  obtained;  and  upon  a  bill  of 
this  nature,  if  the  evidence  discloses  sufficient  ground  for  a 
new  trial  by  reason  of  newly  discovered  testimony,  it  would 
seem  to  be  proper  to  enjoin  the  collection  of  the  judgment." 
But  the  discovery  after  the  final  decision  of  a  cause  of  new 
testimony  tending  to  establish  the  same  defense  relied  upon 
on  the  trial  of  the  action  will  not  of  itself  authorize  an  in- 
junction against  the  judgment,^-  especially  if  the  new  testi- 
mony might,  by  reasonable  inquiry,  have  been  elicited  upon 
the    former    trial.^-''      And    in    order   to    obtain    an    injunction 

-  Slack  V.  Wood,  9  Grat.,  40.  "  Brown  v.  Luehrs,  79  111.,  575. 

><  Village   of    Celina    v.    Eastport  And   see   Ferrell   v.   Allen,   5  West 

Savings  Bank,  15  C.  C.  A.,  495.  68  Va.,   43. 

Fed.,  401.  '^Campbell    v.    Briggs,    3    Rob. 

:»  Hollinger    v.   Reeme,    138    Ind..  fl.a.),   110:    Ware  v.   Horwood,  14 

363,  36  N.  E.,  1114,  24  L.  R.  A.,  46,  Ves.,  31. 

46  Am.  St.  Rep.,  402.  '•!  Cairo  &  F.  R.  Co.  v.  Titus,  12 

"•Craig  r.   Ankeney,  4  Gill,  225.  C.   E.    Green,     102;     Kirby  v.  Pas- 


CllAl'.  lli.|  AGAINST    JUDGiMEXTS.  137 

against  a  judgment  and  a  new  trial  upon  tlie  ground  of  newly 
discovered  evidence,  the  plaintiff  must  show  clearly  that  it 
WHS  through  no  fault  or  negligence  upon  his  part  that  the 
evidence  was  not  discovered  in  time  to  avail  at  law ;  and  where 
the  discovery  was  made  before  the  expiration  of  the  time  in 
which  a  motion  for  a  new  trial  could  have  been  made,  but 
the  plaintiff  failed  to  take  steps  to  secure  it,  the  relief  will  be 
denied.^  ^  Where,  however,  facts  material  to  establish  the  de- 
fense have  been  discovered  since  the  trial,  which  the  defend- 
ant could  not  sooner  have  discovered  by  the  use  of  ordinary 
diligence,  or  where  they  have  been  fraudulently  concealed, 
the  relief  may  be  allowed. i-"'  So  if  the  after  discovered  evi- 
dence shows  a  mistake  or  miscalculation  on  the  part  of  the 
jury,  such  as,  if  discovered  in  time,  would  have  furnished  good 
ground  for  a  new  trial,  the  judgment  will  be  restrained.^" 
And  where  the  defense  relied  upon  was  fraud  as  to  some  of 
the  debts  out  of  which  the  action  grew,  but  the  fraud  was 
not  established,  the  defendant  is  entitled  to  an  injunction 
restraining  the  judgment  on  the  ground  of  after  discovered 
evidence  establishing  fraud  as  to  some  of  the  debts,  but  not 
questioning  others.^"  And  the  misconduct  of  a  jury  which 
would  have  been  a  sufficient  basis  for  a  new  trial,  but  which, 
through  no  fault  of  the  complainant,  was  not  discovered  until 
it  was  too  late  to  make  an  application  therefor,  constitutes 
sufficient  ground  for  an  injunction  against  a  judgment.^ '^  But 
a  judgment  will  not  be  enjoined  upon  grounds  which  had  been 
relied  upon  on  a  motion  for  a  new  trial,  and  which  had  on 
such  motion  been  held  insufficient.^'^     Nor  will  an  injunction 

cault,    53    Md.,     531;     Gorsuch     v.  uel,   2  Heisk.,   329. 

Thomas.    57   Md.,    334;    Carolus   v.         i«  Rust  v.  War,  6  Grat,  50. 

Koch,  72   Mo.,   645.  '■  Blllups  v.  Sears,  5  Grat.,  31. 

!•»  Snider    v.   Rinehart,    20    Col.,         '«  Piatt    v.    Threadgill,    80    Fed., 

448.  39  Pac,  408.  192. 

i5Baltzell  V.  Randolph,    9    Fla.,         '^'Matson  v.  Field,  10  Mo.,   100; 

366;     Gainsborough    v.    Gifford,  2  Telford     v.    Brinkerhoff,     163     111.. 

P.  Wms.,   424;    Hickerson  v.  Raig-  439,  45  N.  E.,  156. 


138  INJUNCTIONS.  [chap.  III. 

be  allowed  for  the  purpose  of  obtaining  a  new  trial  when  the 
party  aggrieved  has  already  obtained  a  new  trial  at  law,  but 
through  his  own  negligence  has  lost  the  opportunity  of  making 
his  defense.-^  And  a  judgment  will  not  be  enjoined  upon 
grounds  arising  after  its  recovery,  the  judgment  debtor  having 
had  a  full  hearing  in  the  action  at  law.-^ 

§  116.  The  same;  perjury  no  ground  for  relief;  false  answer 
under  oath.  As  illustrating  the  grounds  upon  which  equity 
interferes  by  injunction  against  a  judgment  at  law  and  for  the 
purpose  of  obtaining  a  new  trial,  it  is  held  that  where  com- 
plainant shows  matter  sufficient  to  have  defeated  a  recovery 
in  the  action  at  law,  but  the  defense  was  not  interposed  in 
that  action  because  not  discovered  until  after  judgment  and 
until  too  late  to  move  foi  a  new  trial,  the  judgment  should  be 
enjoined,  sufficient  reason  being  shown  why  the  defense  was 
not  discovered  in  time  to  be  used  in  the  action  at  law.^- 
Equity  will  not,  however,  restrain  the  enforcement  of  a  judg- 
ment at  law  because  of  newly  discovered  evidence  tending 
to  show  payment  of  the  demand  upon  which  the  action  is 
brought,  when  such  evidence  is  clearly  insufficient  to  sustain 
the  defense  of  payment.^^  Nor  will  a  judgment*  be  enjoined 
upon  the  ground  of  newly  discovered  evidence  in  the  ab- 
sence of  any  proof  of  diligence  regarding  the  production  of 
or  effort  to  produce  such  evidence  upon  the  trial  of  the  ac- 
tion.-^ Especially  will  the  relief  be  refused  when  the  failure 
to  acquire  knowledge  of  the  defense  in  time  to  defend  at 
law  resulted  from  the  negligence  and  laches  of  the  defendant 
himself,  and  when  he  has  been  guilty  of  inexcusable  negligence 
in  ignoring  facts  sufficient  to  put  a  prudent  man  upon  in- 
quiry as  to  the  matters  of  defense. -•'^     Nor  does  it  afford  suf- 

2'»  Dodge  V.  Strong,  2  Johns.  Ch.,  -■'•  Ludington  v.  Handley,  7  West 

228.  Va.,  269. 

^1  Dobbs  V.  St.  Joseph  F.  &  M.  I.  ^^  Crim  v.  Handley,  4  Otto.  652; 

Co.,  72  Mc,  189.  Hevener  v.  McClung,  22  West  Va., 

22  Ferrell  v.  Allen,  5  West    Va.,  81. 

43.  ^■'  Hill  V.  Harris    51  Ga.,  628. 


CHAP.  III.]  AGAINST   JUDGMENTS.  139 

ficient  ground  for  enjoining  a  judgment  that  perjury  was  com- 
mitted by  witnesses  upon  the  trial  of  the  action;  otherwise 
litigation  would  be  interminable. ^^  But  where  the  plaintiff  in 
an  action  at  law  has  obtained  a  judgment  by  means  of  a 
forged  document  which  was  offered  in  evidence  and  which 
resulted  in  the  judgment,  and  the  fact  of  the  forgery  was  not 
known  to  the  defendant  at  the  time  of  the  trial  and  was  not 
discovered  until  after  the  expiration  of  the  time  in  which 
a  new  trial  could  have  been  sought,  relief  will  be  granted  since 
it  would  be  manifestly  against  conscience  to  enforce  the  judg- 
ment.^^  And  where  the  defendant  in  a  chancery  proceeding, 
by  means  of  a  false  answer  under  oath  touching  certain  fraudu- 
lent transactions  of  which  complainant  could  have  no  knowl- 
edge except  through  such  answer,  persuades  complainant  to 
abandon  his  suit  and  thereupon  procures  a  dismissal  for  want 
of  equity,  he  may  afterwards,  upon  the  discovery  of  the 
falsity  of  the  answer,  be  enjoined  from  setting  up  the  decree 
as  an  adjudication  in  his  favor.^s 

§  117.  The  same ;  what  must  be  shown.  It  is  thus  shown 
that,  to  warrant  a  court  of  equity  in  enjoining  a  judgment 
at  law  and  awarding  a  new  trial  in  the  action  because  of 
newly  discovered  evidence,  substantially  the  same  grounds 
must  be  shown  as  are  necessary  to  justify  a  court  of  law  in 
awarding  a  new  trial.  In  other  words,  it  must  satisfactorily 
appear  that  the  judgment  is  manifestly  wrong;  that  the  evi- 
dence has  come  to  the  knowledge  of  complainant  after  the 
trial  at  law;  that  he  had  exhausted  all  reasonable  means  to 
obtain  it  before  the  trial,  and  that  it  would,  upon  the  trial, 
produce  a  different  result,  and  unless  these  facts  sufficiently 
appear  the  bill  can  not  be  maintained. ^^     Nor  will  equity  en- 

26  Cotzhausen  v.  Kerting,  29  Fed.,     589,  12  Sup.  Ct.  Rep.,  62. 

821;  Bailey  v.  Willeford,  126  Fed.,  ^s  Graver  v.  Faurot,  22  C.  C.  A., 

803;   Steen  v.  March,  132  Cal.,  616,  156,  76  Fed.,   257. 

64  Pac,  994;  Maryland  Steel  Co.  v.  211  Holmes  r.  Stateler,  57  111.,  209; 

Marney,  91  Md.,  360,  46  Atl.,  1077.  Bloss  v.  Hull,  27  West  Va.,  503. 

27  Marshall  v.  Holmes,  141  U.  S., 


140  INJUNCTIONS.  [chap.  III. 

tertain  a  bill  of  this  nature  unless  complainant  can  impeach 
the  justice  of  the  verdict  at  law  by  facts  of  which  he  could 
not  before  avail  himself  by  reason  of  accident,  mistake  or 
fraud  in  the  conduct  of  his  adversary.  And  the  inquiry  is 
whether,  if  the  judgment  were  set  aside  and  a  new  trial 
awarded,  complainant,  upon  the  showing  made,  would  be  en- 
titled to  a  recovery  in  the  action  at  law.""^  Where,  therefore, 
a  judgment  has  been  rendered  Avithout  fraud  being  practiced 
upon  the  defendant,  and  by  consent  of  her  attorney,  who  was 
employed  by  defendant's  husband,  acting  as  her  agent  and 
under  a  power  of  attorney,  the  judgment  will  not  be  en- 
joined and  a  new  trial  awarded  because  of  the  sickness  of 
defendant  at  the  time  of  the  rendition  of  the  judgment,  no 
valid  defense  to  the  action  being  shown.-^^  But  where  a  new 
trial  has  been  granted  unconditionally  in  a  cause,  the  effect  of 
which  is  to  vacate  a  judgment  previously  rendered  therein  as 
effectually  as  if  the  judgment  had  been  set  aside  in  express 
terms,  and  an  attempt  is  afterward  made  to  enforce  such 
judgment  by  levy  and  sale,  equity  may  properly  interpose  by 
injunction  to  restrain  its  enforcement.^^ 

§118.  Relief  not  based  on  error  in  judgment;  not  allowed 
on  information  and  belief.  It  is  important  to  observe  in  the 
consideration  of  this  branch  of  the  preventive  relief  extended 
by  courts  of  equity  that  they  do  not  interfere  with  judgments 
at  law  upon  the  ground  that  the  judgment  was  erroneously 
rendered,  but  only  upon  the  ground  that  its  enforcement  would 
be  contrary  to  equity  and  good  conscience,  as  evidenced  by 
facts  of  which  the  aggrieved  party  could  not  avail  himself 
as  a  defense  at  law;  and  this  being  made  to  appear,  a  proper 
case  is  presented  for  enjoining  the  enforcement  of  the  judg- 
ment.^-"^      Hut    the    legal    presumption    being    in    favor   of   the 

■••<>  Cotton   V.  Hiller,  52  Miss.,  7.  "-  Rickets   r.   Hitchens,    34     Ind., 

•  1  Newman    v.    Morris,    .^2    Miss.,     348. 
402.  ■  •■  Now     York    &    H.     R.     Co.    v. 

Haws,   nC,   N.   Y.,   175. 


CHAP.  III.]  AGAINST   JUDGMENTS.  141 

legality  and  fairness  of  a  judgment  and  execution,  equity 
will  not  enjoin  their  enforcement  upon  a  bill  alleging  fraud 
and  collusion  when  the  allegations  are  made  only  upon  in- 
formation and  belief,  and  are  positively  denied  by  the  affi- 
davit of  one  of  the  parties  charged  with  the   fraud.^* 

§  119.  Sale  under  execution  against  third  person,  v^rhen  en- 
joined. The  aid  of  an  injunction  is  frequently  sought  for  the 
purpose  of  preventing  a  threatened  sale  of  one's  property 
under  .execution  against  a  third  person.  While  the  authorities 
are  not  wholly  uniform  or  reconcilable  upon  this  question,  the 
better  rule  and  that  having  the  clear  weight  of  authority  in 
its  support  undoubtedly  is  that,  where  one's  personal  prop- 
erty is  taken  in  execution  to  satisfy  the  debt  of  another,  equity 
may  interfere  for  the  purpose  of  retaining  the  property  in 
specie,  notwithstanding  the  remedy  at  law  for  the  recovery 
of  the  property  or  of  damages  for  its  detention.  The  jurisdic- 
tion is  akin  to  that  entertained  by  courts  of  equity  to  compel 
a  performance  of  contracts  in  specie,  and  is  founded  upon  the 
necessity  of  protecting  property  rights  where  courts  of  law 
afford  at  best  but  uncertain  and  insufficient  reparation  in 
damages.3^    And  a  levy  under  an  execution  against  third  per- 

a*  Jones  V.  Thacher,  48  Ga.,  83.  it  is  competent  to  a  sheriff  having 
35  Watson  V.  Sutherland,  5  Wal.,  doubts  as  to  the  title  of  the  pi-op- 
74;  Hardy  v.  Broaddus,  35  Tex.,  erty  taken  in  execution  to  de- 
668;  Poincy  v.  Burke,  28  La.  An.,  mand  from  the  creditor  an  Indem- 
673;  Lewis  v.  Daniels,  23  La.  An.,  nifying  bond  pursuant  to  the  act 
170;  Deville  v.  Hayes,  23  La.  An.,  in  such  case  made  and  provided, 
550;  Wilson  v.  Butler,  3  Munf.,  yet  neither  of  those  remedies  are 
559.  The  grounds  of  the  jurisdic-  in  exclusion  of  a  proceeding  in 
tion  in  such  cases  are  well  set  equity  having  for  its  object  the  re- 
forth  in  the  opinion  of  the  court  in  tention  of  the  property  in  specie. 
Wilson  V.  Butler,  as  follows:  "Al-  Every  argument  on  which  the  jur- 
though  a  party  whose  property  is  isdiction  of  the  courts  of  equity 
taken  in  execution  to  satisfy  the  to  compel  a  performance  of  a  con- 
debt  of  another  may  proceed  to  re-  tract  in  specie  is  founded  is  sup- 
cover  that  property  or  damages  for  posed  to  hold  with  equal  force  at 
the  taking  and  detaining  thereof  least  in  favor  of  retaining  a  sub- 
in  a  court  of  law;     and  although  ject    of    property    which  another, 


142  INJUNCTIONS,  [chap.  III. 

sons  upon  property  owned  iona  fide  by  complainant  and  which 
constitutes  his  stock  in  trade  presents  such  elements  of  ap- 
prehended damage  and  injury  as  are  not  susceptible  of  relief 
by  action  at  law,  and  constitutes  sufficient  ground  for  an  in- 
junction/'^^ So  a  landlord  having  a  prior  lien  for  rent  upon 
property  on  the  demised  premises,  and  having  issued  his  dis- 
tress warrant,  may  enjoin  a  sale  of  such  property  under  e^xecu- 
tion  against  the  tenant.^'^  And  one  who  has  purchased  per- 
sonal property  from  a  judgment  debtor  may  enjoin  a  sale  of 
the  property  under  execution  until  other  property  subject  to 
execution  has  been  first  exhausted.^^  So,  where  a  judgment 
creditor  is  proceeding  to  levy  his  execution  and  sell  the  prop- 
erty of  his  judgment  debtor  pending  proceedings  in  garnish- 
ment against  the  latter,  the  debtor  is  entitled  to  restrain  the 
collection  of  the  judgment  pending  such  proceedings,  since 
without  such  relief  he  might  be  compelled  to  pay  the  judg- 
ment twice.^^  And  where  property  has  been  illegally  taken 
in  execution  under  a  judgment  which  is  not  subject  to  the 
lien  of  the  judgment,  as  in  the  case  of  individual  property 
of  a  member  of  a  school  district  which  is  seized  to  satisfy  a 
debt  of  the  district,  its  sale  under  execution  may  be  enjoined.'**^ 
So  equity  will  enjoin  the  sale  of  stock  in  a  corporation  by  a 
sheriff  proceeding  under  a  judgment  against  a  former  owner 
of  the  stock,  at  the  instance  of  one  who  has  received  an  as- 
signment of  the  shares  and  holds  the  certificates  thereof  but 

having  no  titie  thereto,  claims  to  lb.,  416;     Baker    v.    Rinehard,  11 

arrest  and  dispose  of  by  means  of  West   Va.,    238;     Zanhizer  v.   Hef- 

an  execution,  rather  than  turn  the  ner,  47  West  Va.,  418,  35  S.  E.,  4; 

rightful   owner   round   to   seek  an  Payne  v.  Graham,  23  La.  An.,  771; 

uncertain  and    inadequate    repara-  Chappell  v.  Cox,  18  Md.,  513;  Amis 

tion   in   damages."     And   see  Wal-  v.  Myers,  16   How.,  492. 

ker  V.  Hunt,  2  West  Va.,  491 ;  Mc-  36  McCreery    v.    Sutherland,     23 

Farland  v.  Dilly,  5  West  Va.,  135;  Md.,   471. 

Ford   V.   Rigby,    10   Cal.,   449;    Mc-  37  Click  v.  Stewart,  36  Tex.,  280. 

Creery  v.  Sutherland,  23  Md.,  471.  38  Sidener  v.  White,  46  Ind.,  588. 

But  see,  contra,  Lewis  v.  Levy,  16  "o  Keith   v.  Harris,  9   Kan.,  386. 

Md.,   85;     Freeland    v.     Reynolds,  ^o  Kenyon  v.  Clarke,  2  R.  L,  67. 


CHAP.  III.]  AGAINST   JUDGMENTS.  143 

who  has  failed  to  have  the  stock  transferred  upon  the  books 
of  the  company,  where  neither  the  statute  nor  the  by-laws  of 
the  corporation  require  that  the  stock  shall  be  transferable 
only  upon  the  books  of  the  company.^^  But  where  it  is  sought 
to  enjoin  a  sale  by  a  sheriff  under  execution  of  property  alleged 
to  be  held  in  trust  for  a  third  person,  the  bill  should  set  forth 
the  judgment  and  execution  with  sufficient  particularity  to 
give  color  of  right  in  the  sheriff  to  make  the  levy  and  sale.'*^ 
And  in  such  case  the  bill  should  also  give  color  of  right  in  the 
alleged  trustee,  since  otherwise  there  is  nothing  to  enjoin.*^ 
§  120.  The  same ;  relief  not  allowed  where  remedy  at  law ; 
not  allowed  against  sale  of  real  estate.  To  the  general  rule 
as  thus  illustrated  there  are  certain  exceptions  deserving  of 
notice,  but  which  are  themselves  based  upon  well  established 
principles  pertaining  to  the  law  of  injunctions.  And  first,  it 
is  to  be  noticed  that  in  this  class  of  cases,  as  in  all  others 
where  the  extraordinary  remedy  of  injunction  is  sought,  the 
courts  decline  to  interfere  to  restrain  the  sale  under  execu- 
tion against  a  third  prson  when  a  plain  and  effectual  remedy 
is  provided  by  law  for  determining  the  question  of  title  to  the 
property  levied  upon.  In  such  cases  the  courts  apply  the 
familiar  rule  denying  preventive  relief  by  injunction  where 
a  sufficient  remedy  exists  at  law;  and  if  no  sufficient  reason 
is  shown  for  not  resorting  to  the  remedy  at  law,  the  person 
aggrieved  will  be  remitted  to  that  remedy.'*'*  As  illustrating 
the  rule,  it  is  held  that  the  relief  should  be  denied  where  it 
does  not  appear  that  the  chattels  are  of  peculiar  value  to  the 
owner  or  that  the  threatened  levy  and  sale  would  result  in 
collateral  or  consequential  damage."*^     So  a  court  of  equity 

41  Allen  V.   Stewart,   7  Del.   Ch.,  Hunt,   2  West  Va.,  491;     Zanhizer 

287,  44  Atl.,  786.  V.  Hefner,  47  West  Va.,  418,  35  S. 

•«2  Trueblood     v.     HollingS'wortli,  E.,  4;    Beatty  v.  Smith,  14  S.  Dak., 

48  Ind.,  537.  24,  84  N.  W.,  208;    Bostic  v.  Young, 

•13  Id.  116  N.   C,   766,   21   S.  E.,  552. 

44  Ferguson  v.  Herring,  49  Tex..         4.';  Allen  v.  Winstandly,  135  Ind., 

126;     Baker  v.  Rinehard,  11   West  105,  34    N.   E.,  699. 
Va.,     238,     criticising    Walker    v. 


144  INJUNCTIONS.  [chap.  III. 

will  not  interpose  by  injunction  to  prevent  a  sale  of  com- 
plainant's real  estate  under  execution  against  another,  since 
the  question  of  title  to  real  estate  is  ordinarily  to  be  determined 
at  law,  and  a  mere  trespass  will  not  be  enjoined  unless  the 
legal  remedy  is  inadequate.^^  Nor  will  the  aid  of  an  in- 
junction be  extended  in  behalf  of  one  claiming  under  a  fic- 
titious or  fraudulent  sale  from  a  judgment  debtor,  made 
with  the  intent  to  prevent  his  creditors  from  reaching  the 
property,  to  restrain  a  sale  of  the  property  thus  transferred 
under  execution  against  the  debtor.'*'^  So  a  sale  of  chattels 
under  execution  will  not  be  enjoined  when  it  is  not  shown 
that  any  injury  will  result  for  which  full  and  adequate  relief 
may  not  be  had  at  law.^'^  And  where  a  judgment  debtor 
has  consigned  property  to  his  factors  or  brokers,  who  have 
received  a  bill  of  lading  as  security  for  advances  made  by 
them  to  the  former,  but  before  they  receive  the  property  it 
is  levied  upon  under  execution  against  the  debtor,  an  injunc- 
tion will  not  be  granted  in  behalf  of  the  factors  to  prevent 
the  levy.'*^  As  further  illustrating  the  general  principle  that 
equitable  relief  will  not  be  granted  against  judgments  where 
there  is  an  adequate  remedy  at  law,  it  is  held,  in  a  case 
where  complainant  seeks  to  enjoin  the  enforcement  of  a  judg- 
ment of  a  justice  of  the  peace  upon  the  ground  that  an  appeal 
has  been  taken  but  the  justice  refuses  to  approve  the  appeal 
bond,  that  the  relief  should  be  denied  since  the  complainant 
has  an  adequate  remedy  by  mandamus   against  the  justice.^" 

4«5  Wilson  ;■.  Hyatt,  4  S.  C,  369;  •«'<  Still  well    v.    Oliver,     35     Ark., 

Bostic  V.  Young,  116  N.  C,  766,  21  184;     Jacks   v.   Bigham,    36    Ark., 

S.  E.,  552.     And  see,  for  a  discus-  481.      But   in   Washington    a    con- 

sion  of  the   doctrine    in    cases  of  trary  rule  would  seem  to  prevail, 

sales  of  real  estate  under  execution  Grant   v.    Cole,    23    Wash.,    542,    63 

against  a  third  person,  chapter  VI,  Pac,  263. 

poHt,  §  367  et  seq.  ">  Chaffraix   v.    Harper,     26     La. 

*^  Mora  ('.  Avery,  22  La.  An.,  417;  An.,  22. 

Lewis    V.    Dinkgrave,    24    La.   An.,  co  Boyd  v.  Weaver.  134  Ind.,  266, 

489.  33  N.   E.,  1027. 


t'llAl".  111. J  ACAINSI'    .iriXi.MKNTS. 


145 


§  121.  Excessive  levy  not  enjoined.  The  fact  that  a  shL-rift" 
in  levying  an  execution  upon  property  of  a  judgment  debtor 
makes  an  excessive  levy  does  not  of  itself  justify  a  resort 
to  the  writ  of  injunction  when  full  relief  may  be  had  in  such 
case  by  application  to  the  court  in  which  the  judgment  was 
rendered.^^  Nor  can  a  judgment  debtor  enjoin  a  sale  under 
execution  upon  the  ground  that  the  sheriff  has  seized  immov- 
able property  when  he  should,  under  the  law  of  the  state,  have 
first  levied  upon  movable  property,  when  the  debtor  refuses 
upon  the  application  of  the  sheriff  to  point  out  property  on 
which  to  levy.^- 

§  122.  Sale  of  personal  property  exempt  from  execution ; 
conflict  of  authority.  Upon  the  question  of  the  right  of  a 
judgment  debtor  to  enjoin  a  sale  of  his  personal  property 
under  execution,  upon  the  ground  that  it  is  exempt  by  law 
from  sale  under  judicial  process,  the  authorities  are  con- 
flicting. Thus,  it  has  been  held  in  Texas  that  a  sale  of  per- 
sonal property  which  is  exempt  from  execution  may  be  re- 
strained by  the  judgment  debtor,^^  and  a  similar  doctrine 
prevails  in  Nebraska  ;''''^  while  in  North  Carolina  it  is  held 
that  such  a  sale  will  not  be  enjoined  upon  the  application 
of  the  debtor,  but  he  will  be  left  to  pursue  his  legal  remedy  ;^^ 
and  the  rule  has  thus  been  announced  in  Oregon.-'*''  Upon 
principle,  it  is.  difficult  to  perceive  any  satisfactory  reason 
for  interfering  by  injunction  in  such  cases,  since  adequate 
relief  may  usually  be  had  by  an  action  at  law. 

51  Palmer  v.  Gardiner,  77  111.,  ■'■^  Nichols  v.  Claiborne,  39  Tex., 
143;  Hefner  v.  Hesse,  29  La.  An.,  363;  Stein  v.  Frieberg.  64  Tex., 
149.     As  to  the  effect  of  a  bill  to     271. 

enjoin  an  exec    ion  for  costs  upon  -^'^  Cunningham    v.     Conway,     25 

the    ground      that     they    are    ex-  Neb.,  615. 

cessive,    and    for    a    retaxation    of  ■'^•'>  Baxter  v.  Baxter,  77  N.  C,  118. 

the  costs,  see  Lockart  v.  Stuckler,  ■''"  Parsons  v.  Hartman,   25   Ore., 

49   Tex.,   765.  547,  37   Pac,    61,   30   L.  R.  A.,  98. 

52  Hefner  v.   Hesse,    29    La.   An.,  42  Am.  St.  Rep.,  803. 
149. 

10 


146  INJUNCTIONS.  [chap.  III. 

§  122  a.  Sale  of  property  of  quasi-public  corporation  en- 
joined. Where  the  exemption  arises  from  the  fact  that  the 
property  which  it  is  sought  to  reach  by  execution  is  impressed 
with  a  public  use,  being  that  of  a  quasi-public  corporation, 
the  relief  will  be  granted  upon  principles  of  public  policy. 
Thus,  where  an  execution  is  about  to  be  levied  upon  the  real 
estate  of  a  railway  or  canal  company,  an  injunction  is  prop- 
erly granted,  thereby  preventing  the  corporation  from  being 
so  crippled  as  to  be  unable  to  discharge  its  public  functions.^^ 

§  123.  Judgment  paid  in  whole  or  in  part ;  conflict  of  au- 
thority as  to  right  to  injunction.  There  is  a  noticeable  want 
of  harmony  in  the  authorities  upon  the  question  of  the  right 
to  enjoin  the  enforcement  of  a  judgment  which  has  been 
already  paid  either  in  whole  or  in  part.  The  better  considered 
doctrine  upon  this  subject,  and  that  most  in  harmony  with 
the  general  principles  underlying  the  preventive  jurisdiction 
of  equity,  is  that  an  injunction  should  not  be  granted  for 
the  purpose  of  staying  or  preventing  a  sale  under  execution 
on  the  ground  of  payment  in  whole  or  in  part,  and  that  in 
all  such  cases  the  person  aggrieved  should  be  left  to  pursue 
his  remedy  at  law.^^  There  are  not  wanting,  however,  respec- 
table authorities  to  the  contrary.  Thus,  it  is  held  that  if 
the  judgment  has  already  been  fully  paid,  sufficient  ground  is 
presented  for  enjoining  any  attempt  at  its  further  enforce- 
ment.^^ Or,  if  the  judgment  has  been  paid  in  part,  and  a 
lawful  tender  is  made  of  the  residue,  it  is  held  that  equity 
may  properly  enjoin  the  further  enforcement  of  the  judg- 
ment.^*'    And  when  a  judgment  is  rendered  in  behalf  of  one 

57  Brady    v.    Johnson,    75     Md.,  dinal    v.    Eau    Claire     L.     Co.,     75 

445,  26  Atl.,  49,  20  L.  R.  A.,  737;  Wis.,  404,  44  N.  W.,  761.     And  see 

McColgan  v.  B.  B.  R.  Co.,  85  Md..  Parker  v.  Jones,  5  Jones  Eq.,  276; 

519,  36  Atl.,  1096.  Hall   v.  Taylor,  18  West  Va.,  544. 

5>t  Lansing    v.    Eddy,     1    Johns.  And    see    Buster    v.    Holland,   27 

Ch.,  49;    Foster  v.  Wood,  6  .Tohns.  West  Va.,  510. 

Ch.,  87;     Howell   v.   Thomason,    34  r,ii  Buie  v.  Crouch,  37  Tex.,  53. 

West  Va.,  794,  12  S.  E.,  1088;   Car-  «<>  Bowen  v.  Clark,   46  Ind.,  405. 


CHAP.  III.]  AGAINST   JUDGMENTS.  147 

who  occupies  a  relation  of  trustee  for  others  as  to  the  de- 
mand sued  upon,  and  the  beneficiaries  in  the  judgment  ac- 
knowledge satisfaction  thereof,  the  trustee,  it  is  held,  may 
be  enjoined  from  collecting  the  judgment,  notwithstanding 
the  beneficiaries,  as  between  themselves  and  the  trustee,  have 
not  been  paid.^^  So  when  a  judgment  is  obtained  against 
garnishees  in  an  attachment  suit,  which  they  are  compelled 
to  pay,  an  injunction  is  the  appropriate  remedy  to  protect 
them  from  the  enforcement  of  a  judgment  against  them  and 
in  favor  of  the  original  creditor  for  the  same  indebtedness.^^ 
So  when  an  execution  is  issued  for  a  larger  amount  than 
is  actually  due,  it  is  regarded  as  proper  to  grant  an  in- 
junction as  to  such  excess.^3  -Qj^i  g,  failure  to  credit  part 
payment  on  a  judgment  will  not  warrant  an  injunction  re- 
straining the  enforcement  of  the  entire  judgment.^'*  And 
where  a  judgment  has  been  enjoined  because  of  payments  hav- 
ing been  made  for  which  no  credit  is  given,  and  defendant 
in  his  answer  admits  a  partial  payment,  the  injunction  will 
be  made  perpetual  as  to  such  amount,  and  will  be  dissolved 
as  to  the  balance  yet  due.^^  So  if  the  judgment  debtor,  dur- 
ing the  pendency  of  the  injunction,  should  pay  a  portion  of 
the  judgment  enjoined,  the  injunction  will  be  made  perpetual 
as  to  the  amount  paid.^^ 

§  124.  Jurisdiction  not  exercised  in  criminal  matters.  The 
jurisdiction  of  equity  being  limited  strictly  to  questions  con- 
cerning civil  and  property  rights,  the  courts  will  not  in  any 
manner  interfere  with  the  execution  of  judgments  in  crim- 
inal matters.  An  injunction,  therefore,  will  not  be  granted 
in  behalf  of  persons  convicted  of  criminal  offenses  and  im- 
prisoned in  a  county  jail  to  prevent  the  use  of  such  jail  for 

61  Meyer  v.  Tully,  46  Cal.,  70.  64  Cobb  v.  Hynes,  4  La.  An.,  150. 

62  Allen  V.  Watt,  79  111.,  284.  es  Perry  v.  Kearney,  14  La.  An., 

63  Miles   V.    Davis,   36    Tex.,   690.     401. 

See  also  Gentry  v.  Lockett,  37  6o  Tapp  v.  Beverley,  1  Leigh,  80. 
Tex.,  503. 


148  INJUNCTIONS.  [chap.  III. 

their  confinement  upon  the  ground  of  its  being  extremely  un- 
healthy and  dangerous  to  life,  since  to  grant  the  relief  desired 
in  such  case  would  be  an  interference  with  the  excution  of 
judgment  in  a  criminal  cause.  And  especially  will  the  court 
decline  to  interfere  in  such  case  when  ample  provision  exists 
at  law  for  the  grievance  complained  of.*''^ 

§  125.  Judgment  not  enjoined  because  of  want  of  jurisdic- 
tion. The  purpose  for  which  the  interference  is  allowed  be- 
ing to  prevent  injustice,  a  defect  in  jurisdiction  in  the  court 
in  which  the  judgment  was  rendered  will  not  of  itself  au- 
thorize an  injunction,  if  no  equitable  reason  is  shown  why 
the  judgment  should  not  be  enforced.^^  Even  if  the  judg- 
ment is  altogether  void  for  want  of  jurisdiction  equity  will 
not  enjoin,  but  will  leave  the  parties  to  their  remedy  at  law 
"by  certiorari. '^'^ 

§  126.  Good  defense  to  merits  must  be  shown.  No  rule  of 
the  law  of  injunctions  is  more  firmly  established  than  that 
which  requires  a  suitor  who  seeks  the  aid  of  equity  against 
the  enforcement  of  a  judgment  to  allege  and  show,  not  only 
that  it  would  be  against  equity  and  good  conscience  to  exe- 
cute the  judgment,  but  that  he  has  a  good  and  valid  defense 
to  the  claim  upon  which  it  was  founded.'^"     The  obvious  rea- 

«7  Stuart    V.    Supervisors    of    La  Harder,  39  Ore.,  609,  65  Pac,  1056; 

Salle   Co.,    83    111.,    341.     And    see  Massachusetts  B.  L.  Assn.  v.  Lioh- 

Village    of    Dolton   v.   Dolton,   201  miller,  20  C.  C.  A.,  274,  74  Fed.,  23; 

111.,  155,  66  N.  E.,  323.  Rotan  v.  Springer,  52  Ark.,  80,  12 

"'^  Stokes  r.  Knarr,  11  Wis.,  389;  S.    W.,    156;     Burch   v.  West,   134 

Crandall  v.  Bacon,  20  Wis.,  639.  111.,  258,   25  N.  E.,  658;   Wilson  v. 

«!>  Crandall    v.    Bacon,     20     Wis.,  Shipman,   34   Neb.,   573.  52  N.  W., 

639.  576,  33  Am.  St.  Rep.,  660;     Raisin 

70  Taggart  v.  Wood,  20  Iowa,  236;  Fertilizer     Co.    v.    McKenna,     114 

Sauer  v.   City   of   Kansas,   69   Mo.,  Ala.,  274,  21  So.,  816.     In  Nebraska 

4^;     Gifford   v.    Morrison,   37   Ohio  it    is    held    that   the    court    should 

St.,    502;     Williams  v.   Hitzie,    83  not    go    into    the    merits     of    com- 

Ind.,    303;     Boyd    v.   Weaver,     134  plainant's   alleged    defense   further 

Ind.,  260,  33  N.  E.,  1027:    Ratto  r.  than   to    determine    that   a  prima 

Levy,    63    Tex.,     278;     Melnert     v  facie  defense  is  presented  and    is 


CHAP.  III.]  AGAINST   JUDGMENTS.  149 

son  for  the  rule  is  that  the  eourt  will  not  lend   its  aid  and 
grant  a  new  trial  where  the  final  result  will  not  be  changed. 
An  exception   has  been  recognized   by  some  courts  in  cases 
where  the  judgment  is  absolutely  void  for  want  of  service 
of  process  but  these  cases  only  serve  to  emphasize  the  rule.'^^ 
The  doctrine  has  been  carried  even  further,  and  it  has  been 
held  that  it  must  clearly  appear  that  the  plaintiff  in  the  ac- 
tion at  law  had  in  fact  no  cause  of  action.     This  being  shown 
to  the  satisfaction  of  the  court,  the  judgment  will  be  enjoined 
if  there  has  been  no  laches  or  negligence  upon  the  part  of 
complainant.'-    And  it  is  not  sufficient  to  bring  the  case  within* 
the  rule  that  the  bill  should  allege  generally  that  the  com- 
plainant has  a  good  defense  to  the  action  at  law,  and  that 
it  Avould  be  inequitable  to  enforce  it;  but  the  facts  constitut- 
ing such   defense  should  be   clearly  set  forth."-^     But  if  the 
judgment,    as   between   the   parties   thereto,   has   been   fairly 
obtained,  it  will  not  be  restrained  upon  the  ground  of  mere 
hardship  to  others.'^'* 

§  127.  Eifect  of  injunction  on  lien  of  judgment  and  execu- 
tion. As  regards  the  effect  of  the  injunction  upon  the  lien  of 
the  judgment  enjoined,  it  is  to  be  remembered  that  it  operates 
only  in  personam  upon  the  judgmen';  creditor,  and  not  upon 
the  judgment  itself;  the  lien  is  therefore  not  divested  or  sus- 
pended, but  only  the  execution  stayed."''     And  an  injunction 

urged     in     good     faith.     It    would  ing  of  a  justice  of  the  peace  upon 

seem     to     follow    from    this     that  which  no  judgment  has  been  ren- 

when  the  complainant    has    made  dered,  no  defense  need   be  shown, 

out   such   a  prima   facie   case,   the  Sare  v.  Butcher,  141   Ind.,  146,  40 

injunction    should   be    granted   un-  N.  E.,  749. 

til  the   ultimate   determination   of  f-  Huebschman  v.  Baker,  7  Wis., 

that  defense  in  a  new  trial  at  law.  542. 

Bankers  Life  Ins.  Co.,  v.  Robbins,  ^y  Chicago,    B.    &    Q.    R.    Co.  v. 

53  Neb.,  44,  73  N.  W.,  269.  Manning.  23   Neb.,  552,  37   N.   W., 

-1  See,    post,   §§    222    and    229  a.  462;    Fickes  v.  Vick,  50  Neb.,  401. 

And  where  the  wrong  complained  69  N.  W.,  951. 

of  has  not  even  the  color  of  a  judg-  '*  Scott  v.  Whitlow.  20  111.,  310. 

ment  back  of  it,  as  the  levy  of  an  '"'Miller  v.  Estill,   8  Yerg.,  452; 

execution  based  upon  a  mere  find-  Anderson  v.   Tydings,   8  Md.,   427. 


150  INJUNCTIONS.  [chap.  III. 

restraining  a  sheriff  from  proceeding  with  an  execution  under 
a  judgment  does  not  impair  the  execution  or  destroy  or  im- 
pair a  levy  made  thereunder.  It  is  therefore  competent  for 
the  sheriff,  after  the  dissohition  of  the  injunction,  to  com- 
plete the  proceedings  begun  under  the  execution.''^^  But  an 
injunction  restraining  a  judgment  creditor  from  all  proceed- 
ings on  his  judgment  recovered  at  law  has  the  effect  of  re- 
straining him  from  proceedings  in  equity  as  well.'^'^ 

§  128.  Release  of  errors  in  judgment  enjoined.  It  has  been 
held  that  an  injunction  of  a  judgment  is  a  release  of  all  errors 
in  the  proceedings  enjoined.'^^  But  even  under  a  statute  pro- 
viding that  the  injunction  shall  operate  as  a  release  of  errors 
at  law,  the  writ  will  not  have  this  eft'ect  if  it  only  restrains 
the  judgment  creditor  from  further  proceedings  under  his 
execution  without  enjoining  the  judgment  itself.^^  And  such 
a  statute,  it  is  held,  does  not  apply  to  proceedings  in  chancery 
or  to  those  of  an  equitable  nature ;  nor  does  it  apply  to  judg- 
ments which  are  absolutely  void,  as  for  want  of  service  of 
process,  instead  of  being  merely  erroneous.^"  And  the  bet- 
ter doctrine  seems  to  be  that,  in  the  absence  of  any  statutory 
enactment  upon  the  subject,  the  injunction  does  not  neces- 
sarily operate  as  a  release  of  errors  in  the  judgment  enjoined.*^^ 
In  no  event  can  such  an  injunction  have  the  effect  of  releas- 
ing errors  in  the  proceedings  at  law  except  as  to  the  party 
obtaining  the  injunction.  Thus,  a  garnishee  who  enjoins  pro- 
ceedings   against    himself    under    the    garnishment  does  not 

And  see  Pettingill  v.  Moss,  3  Minn^  ever  technical  errors  exist  in  the 

222.      But   see,   contra,   as    to     the  proceedings  at  law  are  released  by 

effect  of  the  lien,  Keith  v.  Wilson,  an    Injunction    against    the    judg- 

3  Met.    (Ky.),  201.  ment.       Hazeltine    v.     Reusch,    51 

-'••  Knox  i.  Randall,  24  Minn.,  479.  Mo.,  50. 

77  Little  V.  Price,  1  Md.  Ch.,  182.  7i.  St.  Louis,  A.  &  T.  H.  R.  Co.  v. 

7s  Price  V.  Johnson  Co.,  15  Mo.,  Todd,  40  111.,  89. 

433.     And  in  Illinois  this  is  so  by  «'>  San  Juan  &  St.  L.  M.  &  S.  Co. 

statute.       See  McConnell  v.  Ayres,  v.  Finch,  6  Col.,  214. 

3  Scam.,  210.     So  it  is  held,  under  «i  Gano  v.  White,  3  Ohio,  20. 
a  statute  of  Missouri,    that    what- 


CHAP.  III.]  AGAINST   JUDGMENTS.  151 

thereby  release   errors  that   may  have   occurred  in  the  pro- 
ceedings against  the  defendants  in  attachment.^^ 

§  129.  The  same.  Where  it  is  provided  by  statute  that  a 
party  asking  an  injunction  against  the  enforcement  of  a  judg- 
ment shall  first  release-  over  his  signature  all  errors  in  en- 
tering up  the  judgment,  he  is  estopped  from  setting  up  the 
fact  of  his  own  wrong  in  having  obtained  an  injunction  with- 
out such  release  of  errors.^^  But  a  statute  providing  that  the 
suing  out  of  an  injunction  against  proceedings  under  a  judg- 
ment at  law  shall  operate  as  a  release  of  all  errors  in  the 
judgment  does  not  apply  to  cases  where  the  act  enjoined  is 
itself  in  violation  of  law.'^-'  And  such  a  statute  operates  only 
as  a  release  of  such  errors  as  might  be  assigned  for  reversal 
of  the  judgment  in  an  appellate  tribunal,  and  does  not  pre- 
clude the  judgment  debtor  from  assailing  the  judgment  for 
matters  dehors  the  record,  as  that  the  judgment  was  obtained 
through  fraud. ^^ 

§  130.  Amount  due  must  be  paid  or  tendered.  As  a  general 
rule,  he  who  seeks  to  restrain  the  enforcement  of  a  judgment  at 
law  or  of  proceedings  under  a  judgment  must  first  pay  or 
tender  payment  of  the  amount  really  due,  and  failing  to  do  this 
he  will  be  denied  relief  in  a  court  of  equity .^^  And  if  the 
judgment  draws  interest,  it  must  be  included  in  the  amount 
so  tendered.^'''  And  when  separate  judgments  for  the  same 
cause  of  action  are  rendered  against  each  of  two  wrong-doers, 
one  of  such  judgment  debtors  can  not  enjoin  the  judgment 
against  himself  until  satisfaction  or  payment  of  one  or  the 
other  judgment.^^ 

S2  Taylor  v.  Ricards,  9  Ark.,  378.  502,  5  N.  E.,  414;    Yonge  v.  Shep- 

83  McFarland   v.  Rogers,   1  Wis.,  perd,  44  Ala.,  315;  Smiths.  Smith, 

452.  75  Tex.,  410,  12  S.  W.,  678. 

«■*  Burge     V.     Burns,     1     Morris  ^^  Eaton    v.    Markley,     126     Ind., 

(Iowa),   287.  123,  25   N.   E.,   150. 

8''>  Bass  V.  Nelms,  56  Miss.,  502.  ss  Meixell      v.      Kirkpatrick,     25 

86  Baragree  v.  Cronkhite,  33  Ind.,  Kan.,   19. 
192;     Russell    v.   Cleary,    105    Ind.. 


152  INJUNCTIONS.  [chap.  III. 

§  131.  Creditor  without  judgment  not  allowed  to  enjoin  sale 
of  debtor's  property  under  execution.  A  simple  contract 
creditor,  'vvhose  rights  are  not  yet  reduced  to  judgment,  is 
not  entitled  to  an  injunction  restraining  the  disposition  of 
his  debtor's  property  under  certain  judgments  alleged  to  have 
been  obtained  in  fraud  of  his  rights,  even  though  he  has 
begun  suit  at  law  upon  his  claim.  For,  until  the  creditor's 
rights  are  established  by  judgment  at  law,  interference  by 
equity  would  necessarily^  lead  to  oppressive  and  often  fruit- 
less interruption  of  the  debtor  in  the  rightful  enjoyment  of 
his  property.^"  Nor  does  an  attaching  creditor,  who  has  not 
yet  reduced  his  claim  to  judgment,  stand  in  any  better  light 
than  one  w^ho  sues  by  the  ordinary  process  of  the  courts; 
and  he  will  not  be  allowed  to  enjoin  the  disposal  of  the  debt- 
or's propert}^  on  execution,  even  though  the  judgments  under 
which  the  execution  issues  were  fraudulently  confessed  by 
the  debtor.^" 

§  132.  Requisities  of  bill ;  parties  necessary.  Where  an 
injunction  is  sought  against  proceedings  at  law  under  a  judg- 
ment, the  bill,  as  between  the  parties  to  the  suit  at  law,  is 
not  considered  as  an  original  bill.  But  if  other  parties  are 
joined  in  the  bill,  and  different  interests  are  involved,  it  is 
to  that  extent  considered  as  an  original  bill.^^  To  sustain 
the  injunction  the  bill  should  show  upon  what  evidence  the 
judgment  was  found,  as  well  as  what  defense  complainant 
has  against  the  judgment,  and  why  such  defense  was  not 
made  upon  the  trial  at  law.^-  And,  in  general,  a  perpetual 
injunction  against   a  judgment  will  not  be  allowed  unless  all 

v;i  Wiggins     V.      Armstrong,       2  See    also    Bigelow    v.    Andress,    31 

Johns.  Ch.,  144;    Angell  v.  Draper.  111.,  322.     But  see,  contra,   Heyne- 

1    Vern.,  399;     Shirley  v.  Watts,  3  man    v.    Dannenberg,    6    Cal.,    376. 

Atk.,   200;     Bennet  v.   Musgrove,  2  And    see    Cogburn    v.     Pollock,   54 

Ves.,  51 ;    Young  v.  Frier,  1  Stockt.,  Miss.,  639. 

465;    Holdrege  v.  Gwynne,  3  C.  E.  in  Dunn  v.  Clarke,  8  Pet..  1. 

Green.  26.  "^  Buntain  v.  Blackburn.  27  111., 

1'"  Martin   r.  Mirhael,   23   Mo.,  50.  406. 


CilAP.  in.  J  AGAINST    JUDGMENTS.  153 

the  parties  in  whose  favor  the  judgment  was  rendered  are 
joined  as  defendants  and  have  filed  their  answers.*'^  So,  as 
a  general  rule,  no  person  will  be  allowed  to  enjoin  a  judg- 
ment to  which  he  is  not  a  party  or  privy."-* 

§  133.  When  injunction  refused;  writ  of  error  no  bar  to  in- 
junction. An  injunction  should  not  be  granted  to  stay  a 
judgment,  the  effect  of  which  would  be  to  retry  the  issue 
in  equity,  where  complainant  does  not  allege  any  surprise 
or  fraud  in  the  trial  at  law,  and  no  defect  of  evidence,  and 
where  he  makes  no  appeal  to  the  conscience  of  the  defendant 
for  a  discovery.'''^  Nor  will  the  relief  be  granted  upon  grounds 
which  have  been  fully  tried  as  a  defense  at  law,  even  though 
the  court  may  be  of  the  opinion  that  such  defense  should 
have  been  sustained  at  law."*'  But  the  effect  of  a  bill  in 
chancery  to  enjoin  proceedings  under  a  judgment  being  not 
to  revise  the  proceedings  at  law,  but  rather  to  urge  equities 
independent  of  the  judgment  as  affording  reasons  for  not 
enforcing  it,  the  fact  that  a  writ  of  error  has  been  sued  out 
upon  the  proceedings  at  law  constitutes  no  bar  to  the  award- 
ing of  an  injunction."''' 

§  134.  Failure  of  consideration ;  accommodation  indorser. 
Failure  of  consideration  is  sometimes  relied  upon  as  a  ground 

•-'3  Marshall  v.  Beverly,  5  Wheat.,  chancery  does  not   draw  into  ques- 

313;     Mayes   v.   Woodall,   35    Tex.,  tion    the    judgment    and     proceed- 

687.  ings   at   law,   or   claim   a   right  to 

■'*  Jordan's  Adm'x  v.  Williams,  3  revise  them.     It  sets  up  an  equity 

Rand.,  501.  independent     of      the      judgment, 

'••5  Brown  v.  Street,  6  R3,nd.,  1.  which  admits  the  validity  of  that 

96  Marine  Ins.  Co.  v.  Hodgson,  7  judgment,    but     suggests     reasons 

Cranch,    332.  why  the  party  who    has    obtained 

'■•'  Parker  v.  Judges,  12  Wheat.,  it  ought  not  to  avail  himself  of  it. 
561.  Marshall,  C.  J.,  giving  the  It  proposes  to  try  a  question  en- 
opinion  of  the  court  says:  "It  is  tirely  new,  whica  has  not  been  and 
contended  that  an  injunction  could  not  be  litigated  at  law.  It 
could  not  be  awarded  while  the  may  be  brought  before  the  corn- 
record  was  before  this  court  on  a  mencement  of  a  suit  at  law,  pend- 
writ  of  error.  We  do  not  think  ing  such  suit  or  after  its  decision 
this  a  valid  objection.   The  suit  in  by   the   highest  law  tribunal." 


154  INJUNCTIONS.  [chap.  III. 

for  enjoining-  proceedings  under  judgments,  but  the  jurisdic- 
tion in  this  class  of  cases  is  somewhat  sparingly  exercised. 
Thus,  in  the  absence  of  fraud  an  injunction  will  not  be  granted 
against  a  judgment  obtained  on  a  contract  under  seal  upon 
the  ground  that  the  contract  was  merely  voluntary  and  with- 
out consideration,  the  rights  of  purchasers  and  creditors  not 
coming  in  question.^^  So  a  failure  to  perform  the  covenants 
in  a  deed,  which  covenants  were  the  consideration  for  the 
giving  of  a  note,  does  not  constitute  sufficient  equity  to  war- 
rant a  court  in  enjoining  a  judgment  upon  the  note  in  favor 
of  a  third  person  to  whom  it  had  been  transferred.'^^  A  court 
of  equity  may,  however,  enjoin  a  judgment  on  an  assigned 
note  because  of  failure  of  consideration  where  the  facts  limit- 
ing the  right  of  recovery  are  complicated  and  inappropriate 
for  the  determination  of  a  jury,  even  though  the  defense 
was  not  made  at  law.^  And  where,  in  a  suit  prosecuted  to  a 
court  of  last  resort,  the  makers  of  a  promissory  note  were 
held  not  liable  on  the  ground  of  illegality  of  consideration, 
an  accommodation  indorser  was  allowed  to  enjoin  a  judgment 
against  him  on  the  same  note,  even  though  he  had  not  shown 
diligence  in  defending  at  law.  In  such  case  the  accommoda- 
tion indorser  is  regarded  in  the  light  of  a  surety,  and,  his 
principal  being  discharged,  the  surety  should  also  be  dis- 
charged.^ 

§  135.  Injunction  ag-ainst  sale  under  execution,  when  opera- 
tive; duty  of  sheriff;  amount  of  judgment  need  not  be  brought 
into  court.  It  has  been  held  that  an  order  for  an  injunction 
to  restrain  a  sale  under  execution  does  no;t  become  operative 
to  stay  proceedings  under  the  execution  until  complainant  has 
complied  with  the  terms  of  the  order  by  giving  the  necessary 

!>8  Stubblefield     v.     Patterson,     1  i  Reese  v.  Walton,    4    B.    Mon., 

Hayw.    (Tenn.),   128.  507. 

08  Gridley  v.  Tucker,  Freem.  Ch.,  -  Miller   v.    Gaskins,    Sm.     &    M. 

209.  Ch.,  524. 


CHAP.  III.]  AGAINST   JUDGMENTS.  155 

bond  and  security.^  And  it  is  considered  no  contempt  of 
court  in  such  case  to  proceed  with  the  sale,  notwithstanding 
plaintiff  in  execution  was  apprised  of  the  order  for  the  in- 
junction.^ And  when  an  injunction  is  served  upon  a  sheriff 
restraining  an  execution  in  his  hands,  it  is  his  duty  to  note 
the  fact  upon  the  execution,  and  to  desist  from  all  further 
proceedings,  without,  however,  releasing  the  levy.'^  But  where 
proceedings  under  a  judgment  are  enjoined,  the  amount  of  the 
judgment  need  not  be  brought  into  court  unless  it  appears 
that  there  is  danger  of  insolvency.^  And  w^hen  a  court  has 
properly  acquired  jurisdiction  of  the  cause,  and  has  granted 
an  injunction  to  restrain  the  sale  of  personal  property  under 
execution,  it  may  retain  jurisdiction  for  the  purpose  of  award- 
ing damages  for  detention  of  the  property.'^ 

§  136.  Effect  of  death  of  plaintiff  or  defendant.  The 
pendency  of  an  injunction  to  a  judgment  at  law  will  not  in 
case  of  the  death  of  the  defendant  in  the  action  at  law  pre- 
vent the  revival  of  the  judgment  against  his  personal  rep- 
resentatives. The  object  of  the  injunction  being  to. prevent  the 
enforcement  of  the  judgment  by  execution  until  the  equities 
of  the  case  can  be  decided,  a  simple  revival  of  the  judgment 
will  not  prejudice  complainant.^  But  a  judgment  will  not  be 
enjoined  because  of  the  death  of  plaintiff  in  the  action  be- 
fore it  was  obtained  in  his  name,  and  a  bill  filed  for  this 
purpose  is  demurrable  by  the  legal  representatives  of  the  de- 
ceased. The  error,  being  merely  an  error  of  fact,  constitutes 
no  sufficient  equity  to  sustain  an  injunction.^  Nor  will  a 
judgment  be  enjoined  because  rendered  against  a  defendant 

3  Clarke  v.  Hoome's  Ex'rs,  2  t  Chambers  v.  Cannon,  62  Tex., 
Hen.  &  M.,  23.  293. 

4  Id.  8  Richardson  v.  Prince,  11  Grat., 
^'  Pettingill  v.  Moss,  3  Minn.,  222.     190. 

0  Rodgers  v.  Rodgers,  1  Paige,  o  Williamson's  Adm'r  v.  Apple- 
426.  berry,   1   Hen.  &  M.,  206. 


156  INJUNCTIONS.  [chap.  111. 

after  his  death,  since  ample  remedy  may  be  had  at  law  upon 
any  attempt  to  enforce  such  judgment.^^ 

§  137.  Injunction  for  or  against  United  States.  A  bill  in 
equity  will  not  lie  against  the  United  States  to  enjoin  pro- 
ceedings under  a  judgment  which  has  been  paid,  since  the 
government  is  not  liable  to  be  sued  except  with  its  own  con- 
sent given  by  law.  But  upon  a  proper  showing  in  such  case 
a  stay  of  proceedings  may  be  had  until  an  investigation  can 
be  made  of  the  facts.^^  Nor  will  an  injunction  be  allowed  in 
favor  of  the  United  States,  in  the  absence  of  fraud,  to  restrain 
a  sale  of  vessels  on  execution  on  the  ground  that  they  may 
possibly  be  taken  beyond  the  jurisdiction  and  the  claim  of 
the   government   be   thereby   endangered.^^ 

§  138.  When  tender  necessary ;  injunction  as  to  part  of  judg- 
ment. In  the  exercise  of  the  jurisdiction  in  restraint  of  pro- 
ceedings at  law  the  courts  enforce  a  rigid  application  of  the 
rule  that  he  who  would  have  equity  must  do  equity.  Where, 
therefore,  complainants  admit  their  indebtedness  to  defend- 
ant to  the  full  amount  of  the  judgment,  they  will  not  be  al- 
lowed an  injunction  without  tendering  payment. ^^  And  where 
complainant,  seeking  to  restrain  a  judgment  against  himself, 
admits  that  he  owes  a  balance  to  defendant  on  account  of  the 
same  matter,  equity  may  require  such  balance  to  be  brought 
into  court  and  paid  accordingly.^*  And  in  no  event  should 
an  injunction  be  allowed  against  more  of  the  judgment  than 
is  shown  to  be  unjust  and  unconscionable. i-''  Where,  however, 
a  bill  of  review^  is  filed  after  judgment,  and  in  this  proceed- 
ing a  reference  is  had  by  agreement  to  a  master  to  report 
llie  amount   actually   due,  and  judgment  is  entered  upon  his 

'"  Lockridge  v.  Lyon,  68  Ga.,  ^^  United  States  v.  Collins,  4 
137.  Blatch.,  142. 

11  United  States  v.  McLemore,  4  ^■'  Overton  v.  Stevens,  8  Mo.,  622. 
How.,  286;  Hill  v.  United  States.  n  Flickinger  v.  Hull,  5  Gill,  60. 
9  How.,  386.  1"' Duncan   v.   Morrison,    Breese, 

113. 


CHAl'.  111.]  AGAINST   JUDGMEiNTS.  157 

report  fur  a  less  amount,  which  is  paid,  the  enforcement  of 
the  original  judgment  may  be  enjoined. i''  Where  the  cir- 
cumstances of  the  case  require  it  the  injunction  will  be  dis- 
solved as  to  a  part  and  continued  as  to  the  residue.''  And 
where  part  only  of  a  judgment  has  been  enjoined  the  resi- 
due stands  as  if  it  were  the  original,  and  draws  interest 
from  the  date  of  the  judgment.'^ 

§  139.  Minimum  limit  of  jurisdiction;  judgment  in  replevin; 
two  funds.  Where  by  statute  a  minimum  amount  is  fixed 
as  a  limit,  under  which  the  courts  have  no  jurisdiction,  equity 
will  not  restrain  the  collection  of  a  judgment  for  less  than 
that  amount.'-^  But  where  a  judgment  in  replevin  is  in  the 
alteniative  form— that  is,  for  the  return  of  the  property,  or, 
in  default  thereof,  for  the  recovery  of  pecuniary  damages— 
if  a  tender  of  the  property  replevied  is  made  within  a  reason- 
able time  the  judgment  creditor  may  be  enjoined  from  enforc- 
ing by  execution  the  alternative  judgment  for  money.-*^  Equity 
will  not,  however,  restrain  the  enforcement  of  a  judgment 
because  there  are  two  funds  frcfm  wdiich  it  may  be  realized, 
since  the  creditor  has  an  undoubted  right  to  pursue  his  rem- 
edy in  each  case  until  he  obtains  satisfaction  of  his  debt.-^ 

§  140.  Mortgagees  of  railroad  refused  injunction  against 
judgment  creditor;  superior  equitable  title.  Where  a  rail- 
road   company    has    mortgaged    its    road    and    equipments    to 

ifi  Johnson  v.  Kitch,  100  Ind.,  30.  dismissed  which  seeks  to  enjoin  a 

17  Lyles  V.  Hatton,  6  Gill  &  J.  judgment  for  an  amount  less 
122.  than  that  sum.     York  v.  Kile,   67 

18  Copeland's     Adm'r     /•.     Reese,  111.,  233. 

Wright    (Ohio),  728.  ^<' McClellan     v.      Marshall.      19 

i»  Breckinridge  v.  McCormick,  43  Iowa,   561;     Marks    v.     Willis,    3«5 

111.,  491.     And  under  a  statute  of  Ore..   1,    58    Pac.   526,   78   Am.    St. 

Illinois  providing  that  no  writ  of  Rep.,  752.     To  the  same  effect,  see 

injunction  shall  be  issued  to  stay  Thompson    v.    Laughlin,     91     Cal., 

proceedings  under  a  judgment  re-  313,  27  Pac,  752. 

covered    before    a   justice     of     the  21  Muscatine  r.  Mississippi  &  M. 

peace     for    a    sum    not    exceeding  R.  Co.,  1  Dillon,  536. 
$20,    besides    costs,    a  bill  will  be 


158  INJUNCTIONS.  [chap.  Ill, 

secure  an  indebtedness,  the  mortgagees  will  not  be  allowed 
to  enjoin  a  judgment  creditor  from  satisfying  his  judgment 
out  of  the  personal  property  of  the  road  on  the  ground  that 
its  possession  is  necessary  to  enable  the  company  to  pay  the 
mortgage,  it  not  appearing  that  the  property  remaining  after 
such  levy  would  be  insufficient.^^  But  a  judgment  followed 
by  a  levy  upon  lands  with  notice  of  a  superior  equitable  title 
outstanding  may  be  enjoined  on  payment  of  the  costs  at 
law.^^ 

§  141.  Sale  of  heir-looms,  injunction  refused;  valuable  work 
of  art.  An  injunction  will  not  be  granted  to  prevent  the 
levy  of  an  execution  on  certain  articles  of  property  on  the 
ground  that  they  are  family  heirlooms,  such  as  pictures,  relics 
and  gifts  from  deceased  friends,  where  there  is  no  tender  of 
the  value  of  the  articles.  Nor  in  such  case  is  the  right  to 
an  injunction  strengthened  by  the  fact  that  complainant  has 
more  than  enough  property  aside  from  the  articles  in  ques- 
tion to  satisfy  all  his  debts.-'*  Nor  will  equity  enjoin  the  sale 
under  execution  of  a  valuable  work  of  art  upon  the  ground 
that  there  is  no  market  for  such  property  at  the  place  where  it 
is  to  be  sold  and  a  sale  at  such  place  would  therefore  result 
in  a  great  sacrifice.^^ 

§  142.  Effect  of  injunction.  An  injunction  restraining  de- 
fendant and  all  other  persons  from  the  sale  of  personal  prop- 
erty until  further  order  of  the  court  is  sufficient  to  prevent 
a  sale  of  the  property  in  satisfaction  of  an  execution  against, 
defendant,  even  though  the  execution  be  in  favor  of  a  per- 
son not- a  party  to  the  bill.-*^  And  the  effect  of  an  injunction 
upon  a  judgment  subsequently  obtained  in  violation  thereof 
is  to   render  such  judgment  null  and  void,  and  proceedings 

■■^■^  Coe  V.  Knox  County  Bank,  10  21   Conn.,  148. 

Ohio  St.,  412.  ■■'■'  Trust     Co.     v.     Weaver,     102 

■^■A  Gutshall  V.  Salsberry.  Wright,  Tenn.,  66,  50  S.  W.,  763. 

127.  20  West  V.  Belches,  5  Munf.,  187. 

^*  Johnson  v.  Connecticut  Bank, 


CHAP.  111.]  AGAINST   JUDGMENTS.  159 

at  law  for  its  enforcement  may  be  enjoined.^'^  But  a  judg- 
ment will  not  be  enjoined  because  complainants  have  in- 
stituted another  suit  at  law  against  the  judgment  creditors 
to  recover  unliquidated  damages  upon  a  contract,  unless  such 
judgment  creditors  are  shown  to  be  insolvent,  or  unless  other 
ground  exists  for  believing  that  the  damages  to  be  recovered 
will  not  be  realized.-^ 

§  143.  Forbearance  to  principal  as  ground  of  injunction  in 
behalf  of  surety.  It  is  a  well  settled  principle  in  equity  that 
the  granting  of  time  or  other  indulgence  to  a  principal  debtor 
in  pursuance  of  a  valid  agreement  to  that  effect  operates  as 
a  discharge  of  the  surety.-^  It  follows,  therefore,  that  a  court 
of  equity  will,  under  such  circumstances,  interfere  to  restrain 
proceedings  at  law  against  the  surety  for  the  collection  of 
the  debt.^*^  And  where  a  creditor  has  entered  into  an  agree- 
ment with  his  principal  debtor  for  forbearance  to  sue,  and 
afterward  and  notwithstanding  such  agreement  he  obtains 
judgment  against  the  sureties  without  their  being  notified  of 
the  contract  of  indulgence,  such  judgment  will  be  perpetually 
enjoined  on  the  application  of  the  sureties.^i 

§  144.  Judgment  against  administrator,  when  enjoined. 
The  aid  of  equity  may  be  properly  invoked  to  restrain  the 
enforcement  of  a  judgment  against  an  administrator,  the  pro- 
ceedings being  had  against  him  in  his  capacity  of  administrator, 
where  there  are  no  assets  in  his  hands  for  its  satisfaction.^^ 
And  where  an  injunction  has  been  allowed  in  such  a  case  it 
will  be  continued  until  such  time  as  sufficient  assets  come 
into  the  hands  of  the'  administrator  to  satisfy  the  judgment  in 
whole  or  in  part,  reserving  to  the  judgment  creditor  the  right 
to  show  such  assets  by  a  sci.  fa.^^ 

27  Collins  V.  Fraiser,  27  Ind.,  477.  3i  Armistead  v.  Ward,  2  P.  &  H., 

-'s  Boone   v.   Small,    3   Cranch   C.  504. 

C,  628.  ^--^  Haydon  v.  Goode,    -1    Hen.    & 

29  2  Story's  Eq.,  §883;   Clarke  v.  M.,  460. 
Henty,  3  Y.  &  C,  187.  ss  id. 

30  2  Story's  Eq.,  §  883,  and  cases 
cited. 


160  INJUNCTIONS.  [chap.  III. 

§  145.  Effect  of  statute  requiring  payment  of  judgment  into 
court.  Where  it  is  provided  by  statute  that  no  injunction 
shall  issue  on  the  application  of  defendant  to  stay  proceed- 
ings at  law  in  a  personal  action  after  verdict  or  judgment,  un- 
less the  amount  of  the  verdict  or  judgment  be  paid  into  court, 
such  statute  applies  as  well  to  a  bill  of  interpleader  which 
prays  an  injunction  as  to  other  cases.^*  Nor  is  such  statute 
limited  in  its  operation  and  effect  to  the  same  suit  in  which 
the  judgment  is  recovered,  its  true  intent  being  that  one  who 
has  obtained  a  judgment  shall  not  be  hindered  in  any  pro- 
ceedings which  he  may  afterward  take  for  its  enforcement, 
whether  by  another  suit  upon   the  judgment  or  otherwise.^^ 

§146.  Failure  to  answer  material  charge;  agreement  by 
third  person  to  pay  execution.  Where  in  a  suit  for  an  in- 
junction against  a  judgment  defendant  fails  to  answer  a  most 
material  charge  in  the  bill,  and  one  on  which  complainant's 
equity  mainly  depends,  such  admission  will  be  taken  as  a 
tacit  acknowledgment  of  the  equity  of  the  bill.  In  such  case 
the  relief  is  properly  granted  as  upon  a  bill  pro  confesso.^^ 
But  an  agreement  by  a  third  person,  not  a  party  to  the  record, 
with  the  judgment  debtor,  that  he  will  pay  the  execution  does 
not  constitute  sufficient  ground  to  warrant  an  injunction 
against  the  cxecution.^'^ 

§  147.  Judgment  upon  bonds  for  purchase  money,  injunc- 
tion refused.  A  purchaser  at  a  sale  made  by  a  trustee  under  a 
trust  to  pay  debts,  who  is  also  one  of  the  creditors  secured 
in  the  trust,  and  who  gives  a  bond  for  the  payment  of  the 
purchase  money  of  the  property  purchased  by  him  at  such 
sale,  can  not  enjoin  the  collection  of  a  judgment  upon  such 
bond  merely  because  he  is  a  creditoi-  to  a  larger  amount  than 

••'•4  Morris  C.  &  B.  Co.  r.  Bartlett,  •■"•  Page's      Ex'r      r.       Winston's 

2  Green  Ch.,  9.  Adm'r,    2    Munf.,    298. 

•"••'•  Kinney    r.    Ogden's    Adm'r,     2  '•'  Triplett    r.    Turner,     2     J.     J. 

Green  Ch.,  168.  Marsli,  476. 


CHAP.  111.]  AGAINST   JUDGMENTS.  161 

he  is  a  debtor,  since  this  would  defeat  the  very  object  of  the 
trust,  which  is  to  secure  the  creditors.^s 

ij  148.  Judgments  against  city,  when  enjoined.  An  injunc- 
tion has  sometimes  been  allowed  to  restrain  the  enforcement 
of  an  execution  which  was  unauthorized  and  prohibited  by 
positive  law.  Thus,  where  under  the  laws  of  the  state  the 
issuing-  of  writs  of  execution  against  a  city  is  prohibited, 
another  method  being  provided  for  satisfying  judgments 
against  the  city,  the  seizure  and  sale  of  the  city's  property 
under  execution  may  be  restrained.^^  And  when  a  judgment 
creditor  of  a  city  has  received  a  check  or  warrant  in  pay- 
ment of  his  judgment,  which  he  has  indorsed  to  a  third  per- 
son, he  may  be  enjoined  from  proceeding  with  the  enforce- 
ment  of  his   judgment   until  the   return   of  such   warrant.'**^ 

§  149.  Defiance  of  court,  effect  of.  The  action  of  a  judg- 
ment creditor  who  places  himself  in  an  attitude  of  hostility  and 
defiance  toward  the  court  concerning  his  judgment  would  seem, 
in  some  instances,  to  lend  additional  weight  to  an  application 
for  an  injunction  against  further  proceedings  under  the  judg- 
ment. For  example,  when  plaintiff  in  a  judgment,  in  defiance 
of  an  order  of  the  court  dismissing  his  levy  under  execution, 
is  proceeding  to  sell  the  property  levied  upon,  he  may  be 
enjoined  from  so  doing. ^^  So  when  plaintiff  in  an  action  at 
law  has  been  enjoined  from  proceeding  with  his  suit,  but  in 
violation  of  the  injunction  he  proceeds  with  his  suit  and  re- 
covers judgment,  it  is  held  that,  equity  having  taken  juris- 
diction of  the  entire  matter  in  controversy  upon  the  bill  for 
injunction,  complainant  in  that  suit  is  entitled,  prima  facie,  to 
have  the  judgment  perpetually  enjoined,  unless  defendant  can 
show  cause  to  the  contrary.^2 

•■is  Capehart  v.  Etheridge,   63    N.  *o  City  of  New  Orleans  v.  Smith, 

C,  353.  24   La.   An.,   405. 

39  City  of  New  Orleans  r.  Ruleff,  41  Scogin  v.  Beall,  50  Ga.,  88. 

23  La.  An.,  708;    City  of  New  Or-  4-' Patterson  v.  Gordon,    3    Tenn. 

leans  v.  Smith,  24  La.  An..  405.  Ch.,  18. 
11 


162  INJUNCTIONS.  [chap.  III. 

§  150.  When  sheriff  not  enjoined  because  of  writ  of  error. 
It  has  been  held  that  a  sheriff  should  not  be  enjoined  from 
selling  under  execution  upon  the  ground  that  proceedings 
have  been  taken  to  reverse  the  judgment  on  error,  and  a  bond 
staying  proceedings  in  the  court  below  has  been  duly  filed 
and  approved,  when  it  is  not  shown  that  the  sheriff  had  any 
knowledge  or  information  concerning  the  proceedings  stay- 
ing the'  execution  of  process,  since  he  should  be  informed  of 
what  has  been  done  before  subjecting  him  to  the  vexation  and 
costs  of  a  suit.^^ 

§151.  Arrangement  between  judgment  debtors,  effect  of; 
transfer  of  judgment  by  creditor.  The  fact  that  judgment 
debtors  have,  as  between  themselves,  effected  an  arrangement 
by  which  the  property  of  one  should  be  turned  out  in  satis- 
faction of  the  execution,  and  that  he  should  be  indemnified 
therefor,  affords  no  ground  for  enjoining  the  enforcement  of 
execution  against  the  property  of  the  other  debtor,  even  though 
plaintiffs  in  the  execution  were  informed  of  the  arrange- 
ment.'*'* Nor  does  the  transfer  of  the  judgment  by  the  judg- 
ment creditor,  without  notice  to  the  debtor,  afford  any  ground 
for  restraining  the  collection  of  the  judgment.^^ 

§  152.  Guardianship.  Where  money  due  to  a  minor  child 
is  paid  to  the  mother  of  the  child,  and  is  expended  for  its 
necessary  support,  and  a  legal  guardian  is  afterward  appointed 
who  brings  suit  against  the  person  who  made  such  payment, 
and  obtains  judgment,  he  may  be  restrained  from  collecting 
such  judgment  until  the  taking  of  an  account  as  to  the  amount 
due  from  the  ward's  estate  to  the  mother  for  such  expend- 
itures.*^ And  where,  under  the  laws  of  the  state,  a  person 
is  adjudicated  an  habitual  drunkard,  and  a  guardian  is  ap- 
pointed of  his  person  and  estate,  and  judgment  is  afterwards 

•«'f  .Jaedicke  v.  Patrie  15  Kan.,  '»■'''  Walker  v.  Villavaso,  26  La. 
287.  An.,  42. 

1*  Boyce  v.  Woods,  37  Tex.,  245.  '«  Southwestern  R.  Co.  v.  Chap- 

man, 46  Ga.,  557. 


CHAP.  III.]  AGAINST   JUDGMENTS.  163 

obtained  against  him  upon  a  cause  of  action  accruing  subse- 
quent to  the  appointment  of  such  guardian,  the  enforcement 
of  such  judgment  may  be  enjoined  at  the  suit  of  the  guar- 
dian.*'^ 

§  153.  Joinder  of  parties.  As  regards  the  joinder  of  par- 
ties to  an  action  for  an  injunction,  it  is  held  that  where  one 
of  several  co-defendants  in  a  joint  judgment  institutes  pro- 
ceedings in  equity  for  the  purpose  of  having  the  judgment  en- 
joined, the  other  defendants  should  be  made  parties  to  the 
cause,  or  sufficient  reason  for  their  omission  should  be  shown. 
And  an  omission  in  this  respect  affords  good  ground  for  de- 
murrer to  the  bill.'*^  But  one  of  two  joint  obligors  in  a  prom- 
issory note  has  been  allowed  an  injunction  to  restrain  the 
enforcement  of  a  judgment  recovered  against  him  alone  in 
a  suit  brought  against  the  two.^^ 

§  154.  Second  execution  pending  appeal  from  injunction 
may  be  enjoined.  When  an  appeal  is  taken  from  an  order 
dissolving  an  injunction  against  an  execution,  and  the  appeal, 
under  the  rules  and  practice  of  the  court,  operates  to  restore 
the  injunction,  but  another  execution  is  issued  upon  the  same 
judgment  pending  the  appeal,  it  is  competent  for  the  court 
below  to  entertain  another  bill  to  enjoin  the  last  execution. 
And  this  is  so,  although  the  suing  out  of  the  last  execution 
was  clearly  a  contempt  of  court,  and  punishable  by  process 
for   contempt.^^ 

§  155.  Injunction  as  between  holder  and  indorser  of  note. 
Where  the  holder  of  a  promissory  note,  pending  an  appeal 
by  one  of  the  makers  from  a  judgment  recovered  upon  the 
note,  obtains  judgment  against  the  indorser  and  then  dis- 
misses the  appeal  suit,  whereby  the  indorser  loses  the  benefit 
of  the  security  upon  the  appeal  to  which  he  would  be  entitled 
upon  payment  of  the  judgment,  sufficient  ground  is  presented 

<7  Devin  v.  Scott,  34  Ind.,  67.  so  Balkum     v.     Harper's    Adm'r. 

48  Gates  V.  Lane,  44  Cal.,  392.  50  Ala.,  372. 

49  Anstell  V.  McLarin,  51  Ga.,  467. 


164  INJUNCTIONS.  [chap.  III. 

for  granting  an  injunction  until  the  hearing,  the  answer  of 
defendant  only  denying  the  allegations  of  the  bill  upon  infor- 
mation.^^ 

§  156.  Execution  against  defaulting  tax  collector  not  en- 
joined. A  court  of  equity  will  not  interfere  to  prevent  the 
collection  of  an  execution  against  a  defaulting  tax  collector 
and  his  sureties,  since  if  the  parties  aggrieved  are  entitled 
to  any  judicial  interference  in  such  a  case,  their  remedy  at 
law  is  as  ample  and  complete  as  they  could  have  in  equity.''- 

§  157.  Judgments  in  criminal  proceedings  not  enjoined.  In 
accordance  with  the  well  established  doctrine  of  equity  deny- 
ing relief  by  injunction  in  matters  of  a  criminal  nature,  or 
affecting  the  criminal  laws,  an  injunction  will  not  be  allowed 
to  prevent  the  enforcement  of  a  judgment  imposing  a  fine  and 
costs  for  violation  of  a  criminal  law  of  the  state."'^*  Nor  will 
a  court  of  equity  enjoin  the  collection  of  an  execution  for  costs 
against  an  unsuccessful  party  to  a  criminal  prosecution.^"* 

§  158.  Mechanics'  lien  proceedings.  Courts  of  equity  will 
sometimes  interfere  for  the  protection  of  a  mechanic's  lien,  if 
it  is  apparent  through  the  conduct  of  creditors  who  have 
obtained  subsequent  liens,  that  there  is  danger  of  impairing 
the  rights  of  the  mechanic  or  material-man.  Thus,  where  such 
lien  has  been  secured  in  accordance  with  statute  for  the  erec- 
tion of  a  building  upon  leased  ground,  an  injunction  will  be 
alloAved  to  prevent  the  removal  of  the  building  by  a  judgment 
creditor  whose  judgment  is  subsequent  to  the  lien,  the  se- 
curity being  insufficient  without  such  building.^^'  But  a  sale 
under  a  prior  mechanic's  lien  will  not  be  enjoined  at  the  suit 
of  a  junior  lien-holder,  especially  when  he  had  notice  of  such 
prior  lien.^^ 

■'1  Lewis  r.  Armstrong,  47  Ga.,  See  Burch  r.  Dooley,  123  Ind.,  288. 
289.  24  N.  E.,  110. 

o;:  Gunby  v.  Bell,  40  Ga.,  133.  ■•■'  Barber    r.     Reynolds    33    Cal.. 

B3.Toseph  IK  Burk,  4t)  Ind.,  59.  497. 

64  Gault    r.    Wallis,    53    Ga.,    675.  ■'■  Winn    r.    Henderson,     63    Ga., 

3G5. 


CJIAP.  III.]  AGAINST   JUDGMENTS.  165 

§  159.  Injunction  to  restrain  sheriff  from  paying  money, 
bond  required.  An  injunction  restraining  a  sheriff  from  pay- 
ing over  money  realized  upon  a  levy  is  regarded  as  substan- 
tially tlie  same  in  its  effects  as  one  restraining  proceedings 
at  law.  In  order,  therefore,  to  warrant  such  an  injunction, 
the  same  statutory  bond  or  deposit  should  be  required  before 
issuing  the  writ  as  is  required  in  the  case  of  an  injunction 
against  proceedings  at  law.^'^ 

J5 160.  Sale  of  good- will  of  business,  violation  of  agreement 
concerning.  Where  a  judgment  has  been  obtained  for  the  pur- 
chase price  of  the  good-will  of  a  trade  or  business,  proceed- 
ings under  the  judgment  will  not  be  enjoined  because  of  a 
violation  of  the  vendor's  undertaking  not  to  carry  on  the  same 
business,  but  the  parties  will  be  left  to  an  action  at  law  for 
damages.^^ 

§  160  a.  Assignee  of  chose  in  action.  The  assignee  of  a 
chose  in  action  can  not  enjoin  the  enforcement  of  a  judgment 
based  thereon  and  obtained  by  the  assignor  against  the  debtor 
who  had  notice  of  the  assignment,  since  the  recovery  of  the 
judgment  by  the  assignor  can  in  no  way  affect  the  assignee's 
rights  and  constitutes  no  defense  to  a  suit  by  the  assignee 
against  the  debtor. ^""^ 

§  161.  Judgment  on  dismissal  of  injunction  bill.  Where 
on  the  dismissal  of  an  injunction  bill  tiled  to  restrain  proceed- 
ings under  a  judgment  a  decree  has  been  rendered  against 
complainant  and  his  sureties  in  the  injunction  bond,  a  court 
of  equity  will  not  interfere  with  the  proceedings,  even  though 
the  original  judgment,  to  enjoin  the  execution  of  which  the 
bill  was  filed,  has  been  set  aside  by  the  court  in  which  it  was 
rendered.^^    And  a  bill  to  enjoin  defendant  from  asking  judg- 

57  Boker  o.  Curtis,  2  Edw.  Ch.,  peared  that  the  enforcement  of  the 
111-  judgment   by    the   assignor   would 

58  Shackle  i7.  Baker,  14  Ves.,  468.     exhaust     the      debtor's      property, 
.19  Perry   v.  Thompson,  108  Ala.,     quaere. 

586,   18   So.,  524.     As  to  the  right         ««  Blythe  v.  Peters,  3  Yerg.,  378. 
to    the    injunction     where     it     ap- 


166  INJUNCTIONS.  [chap.  III. 

ment  and  taking  out  execution  upon  an  injunction  bond  after 
the  dissolution,  is  a  proceeding  entirely  unknown  to  equity 
practice,  and  can  not  be  supported  either  on  principle  or  au- 
thority.^* 

§  162.  Injunction  dissolved  on  answer  denying  bill;  new 
trial  at  law;  newly  discovered  evidence.  With  reference  to 
the  dissolution  of  injunctions  against  judgments  at  law,  the 
same  general  rule  prevails  as  in  other  cases,  and  the  injunc- 
tion will,  in  general,  be  dissolved  on  filing  an  answer  deny- 
ing the  equity  of  the  bill.^^  j>^^  where  an  injunction  has 
been  improperly  granted  against  proceedings  under  a  judg- 
ment and  a  new  trial  has  been  allowed,  the  writ  may  be  dis- 
solved without  awaiting  a  verdict  in  the  second  trial  at  law.^^ 
Where,  however,  it  appears  that  since  the  judgment  was  en- 
joined facts  have  arisen  which  would  make  the  issuing  of  a 
new  injunction  necessary  in  case  of  the  dissolution  of  the 
first,  it  will  not  be  dissolved,  even  though  improvidently 
issued  in  the  first  instance.^* 

§  163.  Damages  upon  dissolution.  In  general  upon  a  dis- 
solution damages  will  be  allowed  only  as  to  so  much  of  the 
judgment  as  remains  due  and  the  collection  of  which  was 
delayed  by  the  injunction.^^  But  where  the  whole  of  a  judg- 
ment has  been  enjoined  for  a  sum  claimed  to  be  due  the  judg- 
ment debtor  from  the  creditor,  bearing  an  insignificant  pro- 
portion to  the  amount  of  the  judgment,  the  injunction  will  be 
dissolved  with  heavy  damages.^^ 

§  164.  Effect  of  dissolution ;  when  decree  for  amount  of 
judgment  erroneous.  The  effect  of  dissolving  an  injunction 
against  proceedings  under  a  judgment  at  law  is  to  remove  all 

61  McReynolds    v.     Harshaw,     2  o*  Exnicios  v.  Weiss,  3  Mart.  N. 

Ired.  Eq.,  195.  S.,  480. 

02  Parkinson     v.     Trousdale,     3  «•"'  Southerland  v.  Crawford,  2  J. 

Scam.,  367;    Hayzlett  v.  McMillan,  J.  Marsh.,  370. 

11  West  Va.,  464;    Rice  v.  Tobias,  '•«  Barrow  v.   Robichaux,   15   La. 

83  Ala.,  348,  3  So.,  670.  An.,  70.                               ' 

63  Vass  r.  Magee,  1  Hen.  &  M.,  2. 


CHAP.  III.]  AGAINST  JUDGMENTS.  167 

barriers  preventing  the  enforcement  of  the  judgment.  Execu- 
tion may  therefore  issue  immediately  upon  the  dissolution, 
and  it  is  not  necessary  to  obtain  leave  of  the  court  for  that 
purpose.^'''  But  it  is  held  that  it  is  erroneous  for  a  court  of 
equity  upon  dissolving  an  injunction  against  a  judgment  at 
law,  to  enter  a  decree  for  the  amount  of  the  judgment.^^  So 
where  a  bill  to  enjoin  a  judgment  is  dismissed  upon  the  ground 
that  the  complainant  has  an  adequate  remedy  at  law  against 
the  judgment,  it  is  erroneous  to  enter  a  decree  for  the  amount 
of  the  judgment,  since  this  is,  in  effect,  to  deprive  him  of  the 
remedy,  the  existence  of  which  is  the  reason  for  refusing  equit- 
able relief.^^ 

67  Young  V.  Davis,  1  Monr.,  152.  made  of  the   proceeding  enjoined, 

G8  Duncan    v.    Morrison,     Breese  see   Raymond  v.   Conger,   51   Tex., 

(III.),    113;      Hubbard    v.    Hobson,  536. 

lb.,   147.     As   to  the  proper  prac-  gd  Railway  Co.  v.  Ryan,  31  West 

tice  in  disposing  of  an  injunction  Va.,  364,  6  S.  E.,  924,  13  Am.   St. 

against  a  judgment  at  law  in  Tex-  Rep.,  865;    Howell  v.  Thomason,  34 

as,  and  as  to  the  disposition  to  be  West  Va.,  794,  12  S.  E.,  1088. 


168  INJUNCTIONS,  [chap.  III. 


11.     Defense  at  Law. 

§  165     Judgment  not  enjoined  where  defense  could  have  been  made  at 
law. 

166.  Illustration  of  the  rule;   judgment  against  conscience  not  nec- 

essarily enjoined. 

167.  The   rule  further   illustrated;    absence  of  witnesses. 

168.  Failure  of  proof  upon  trial  insufficient. 

169.  Failure  to  defend;  threats  of  bodily  harm;   instructing  counsel 

to  defend. 

170.  Usury;  maintenance;  infancy;   payment;  public  business;   false 

testimony. 

171.  Action   for   tort;    bill    should   show   why   defense   not  made   at 

law. 

172.  The   general  rule  applied  to  decrees  in  equity. 

173.  Judgment  not  enjoined  when  remedy  by  appeal  available;  rule 

not  applicable  where  no  appeal  exists. 

174.  Exception  to  rule  when  defendant  not  served  with  process. 

175.  Execution  not  enjoined  when  relief  available  by  application  to 

same  court. 

176.  Sale   under  execution  not  enjoined  because  of  conflict  among 

creditors. 

177.  Two  executions  on  same  judgment;    premature  execution;    ex- 

ecution without  judgment. 

178.  Negligence    in    defending   at    law   a   bar   to    injunction. 

179.  Judgment   not  enjoined  upon  grounds  which  were  urged  as  a 

defense  at  law. 

180.  The  rule  further  illustrated. 

181.  Neglect  of  party  or  counsel;    discharge  in  bankruptcy. 

182.  Further   applications   of  the    rule. 

183.  Exceptions  to  the  rule. 

184.  Exception  when  equities  can  not  be  asserted  at  law. 

185.  Effect  of  insanity  or  derangement. 

186.  Prior  jurisdiction   of  equity. 

187.  Assignee  of  note. 

188.  Court  itself  will  not  take  notice  of  failure  to  defend  at  law. 

189.  Sickness  of  defendant;    coverture. 

S165.  Judgment  not  enjoined  where  defense  coiild  have 
been  made  at  law.  A  f^^enoral  rule  nnderlyinj?  the  entire  juris- 
diction of  oquity  to  restrain  proceedings  at  law  is,  that  where 
the  person   affjrrieved   has  had   an   opportunity  of  interposing 


CHAP.  III.]  AGAINST   J UDG.MRN^TS.  169 

his  defense  at  law  and  has  had  his  day  in  court,  but  has  failed 
through  carelessness  or  inadvertence  to  avail  himself  of  the 
opportunity  of  interposing  such  defense  at  law,  he  can  not 
afterward  make  it  the  ground  for  relief  in  equity,  and  is  barred 
from  enjoining  proceedings  under  the  judgment.  It  is  not  the 
policy  of  the  law  to  permit  persons  to  slumber  upon  their 
rights  when  they  have  an  opportunity  to  assert  them  in  a 
court  of  law  and  afterward  to  permit  their  assertion  in  a 
court  of  equity.  In  the  absence,  therefore,  of  any  sugges- 
tion of  fraud,  accident,  mistake  or  surprise,  and  when  no 
good  reason  is  shown  why  the  defense  was  not  made  at  law, 
the  injunction  will  not  be  allowed  where  it  is  not  obviously 
against  conscience  to  enforce  the  judgment.^ 

T-  Marine        Insurance       Co.       v.  vis    v.    Bayliss,     51      Iowa,      435; 

Hodgson,     7     Cranch,    332;     Hen-  Abrams   v.   Camp,    3     Scam.,    290; 

drickson    i\    Hinckley,     17    How.,  Lucas  v.  Spencer,  27  111.,  15;  Albro 

443;  Emerson  <7.  Udall,  13  Vt.,  477;  v.    Dayton,    28    111.,   325;     Shricker 

Pettes    V.    Bank    of   Whitehall,    17  v.   Field,   9    Iowa,  366;     Wilsey   v. 

Vt.,  435;    Clute  v.  Potter,  37  Barb.,  Maynard,  21  Iowa,  107;    Kersey  v. 

199;     Windwart  v.   Allen,   13    Md.,  Rash,  3   Del.   Ch.,  321;     Weems  v. 

196;     Bateman  v.  Willoe,  1  Sch.  &  Weems,     73     Ala.     462;     Hines    v. 

Lef.,   201;     Commissioners,   etc.   v.  Beers  76  Ga.,  9;     Noble  v.  Butler, 

Patrick,  Sm.  &  M.  Ch.,  110;   Lafon  25   Kan.,    645;     Alleman  v.    Kight, 

V.    Desessart,   1    Mart.     N.     S.,   71;  19  West  Va.,  201;    Ashton  ?;.  Jones, 

Mereditk  i\  Penning,  1  Hen.  &  M.,  14    Neb.,   426;     Hanna  v.   Morrov/, 

585;      Turpin    v.   Thomas,    2    Hen.  43    Ark.,    107;     Proctor   v.    Pettitt. 

&   M.,   139;     Stanard   v.   Rogers,   4  25  Neb.,  96;     Foshee  v.  McCreary, 

Hen.  &  M.,  438;    Benton  /'.  Roberts,  123  Ala.,  493,  26  So.,  309;    Rucker 

3  Rob.    (La.),  224;    Ponder  v.  Cox,  (;.  Langford,  138  Cal.,  611,  71  Pac, 

26    Ga.,    485;      McCook     v.     Bernd  1123;    Redwine  v.  McAfee,  101  Ga., 

Brothers,    79    Ga.,   391;     Beaird    v.  701,  29  S.  B.,  428;     Carney  v.  Vil- 

Foreman,     Breese,     303;      Gott    v.  lage  of  Marseilles,  136  HI.,  401,  26 

Carr,    6     G.   &  J.,   309;     Ewing  v.  N.   E.,  491,  29  Am.   St.   Rep.,  328; 

Nickle,   45    Md.,    413;      Stilwell    v.  Harding  v.  Hawkins,  141  111.,  572, 

Carpenter,  59  N.  Y.,  414,  reversing  31  N.  E.,  307,  33  Am.  St.  Rep.,  347; 

S.  C,  1  Thomp.  &  C,  615;    Menifee  Losey    v.   Neidig,   52   Neb.,   167,   71 

r.  Myers,  33  Tex.,  690;     Shields  v.  N.    W.,    1067;     Waldo    v.    Denton, 

McClung,   6  West  Va.,   79;     O'Con-  135  Pa.  St.,  181,  19  Atl.,  1078;  Bal- 

nor  V.   Sheriff,    30    La.    An.,   441;  low  v.   Wichita  County,     74    Tex., 

Jones  V.   Cameron,   81   N.   C,   154;  339,  12  S.  W.,  48;    Melton  v.  Lewis, 

Beaudry  r.  Felch,  47  Cal.,  183;   Da-  74  Tex..  411,  12  S.  W.,  93;     Good- 


170 


INJUNCTIONS. 


[chap.  III. 


§  166.  Illustration  of  the  rule;  judgment  against  conscience 
not  necessarily  enjoined.  In  illustration  of  the  general  rule 
laid  down  in  the  preceding  section,  that  equity  will  not  afford 
relief  where  an  opportunity  has  been  had  of  interposing  the 
defense  at  law,  it  may  be  said  that  even  where  it  is  manifest 
that  great  hardship  has  been  done  the  defendant  at  law  by 
the  judgment  rendered  against  him,  still  if  such  hardship  does 
not  result  from  any  fraud  or  surprise  on  the  part  of  plain- 
tiff, but  is  merely  the  result  of  negligence  in  making  proper 


man  v.  Henley,  80  Tex.,  499,  16  S. 
W..  432;  Spokane  Coop.  M.  Co.  v. 
Pearson,  28  Wash.,  118,  68  Pac, 
165;  Tompkins  v.  Drennen,  6  C.  C 
A.,  83,  56  Fed.,  694;  Edmanson 
V.  Best,  6  C.  C.  A.,  471,  57  Fed.,  531. 
But  see,  contra,  Boyce's  Ex'rs  v. 
Grundy,  3  Pet,  210.  In  Marine 
Ins.  Co.  V.  Hodgson,  7  Cranch,  332, 
the  law  upon  this  subject  is  well 
laid  down  by  Chief  Justice  Mar- 
shall, as  follows:  "Without  at- 
tempting to  draw  any  precise  line 
to  which  courts  of  equity  will  ad- 
vance, and  which  they  can  not 
pass,  in  restraining  parties  ■  from 
availing  themselves  of  judgments 
obtained  at  law,  it  may  safely  be 
said  that  any  fact  which  clearly 
proves  it  to  be  against  conscience 
to  execute  a  judgment,  and  of 
which  the  injured  party  could  not 
have  availed  himself  in  a  court  of 
law;  or  of  which  he  might  have 
availed  himself  at  law,  but  was 
prevented  by  fraud  or  accident  un- 
mixed with  any  fault  or  negli- 
gence in  himself  or  his  agents, 
will  justify  an  application  to  a 
court  of  chancery.  On  the  other 
hand,  it  may  with  equal  safety  be 
laid  down  as  a  general  rule  that  a 
defense  can  not  be  set  up  in  equity 


which  has  been  fully  and  fairly 
tried  at  law,  although  it  may  bo 
the  opinion  of  that  court  that  the 
defense  ought  to  have  been  sus- 
tained at  law.  In  the  case  under 
consideration  the  plaintiffs  ask 
the  aid  of  this  court  to  relieve 
them  from  a  judgment,  on  account 
of  a  defense  which,  if  good  any- 
where, was  good  at  law,  and  which 
they  were  not  prevented,  by  the 
act  of  the  defendants,  or  by  any 
pure  and  unmixed  accident,  from 
making  at  law.  It  will  not  be  said 
that  a  court  of  chancery  can  not 
interpose  in  any  such  case.  Being 
capable  of  imposing  its  own  terms 
on  the  party  to  whom  it  grants 
relief,  there  may  be  cases  in  which 
its  relief  ought  to  be  extended  to 
a  person  who  might  have  defend- 
ed, but  has  omitted  to  defend  him- 
self at  law.  Such  cases,  however, 
do  not  frequently  occur.  The 
equity  of  the  applicant  must  be 
free  from  doubt.  The  judgment 
must  be  one  of  which  it  would  be 
against  conscience  for  the  person 
who  has  obtained  it  to  avail  him- 
self. The  court  is  of  opinion  that 
this  is  not  such  a  case."  Emerson 
p.  Udall,  13  Vt.,  477,  was  a  bill  in 
chancery   to   restrain   the   enforce- 


CHAP.  III.] 


AGAINST   JUDGMENTS. 


171 


defense  at  law,  relief  against  the  judgment  will  be  refused.^ 
Nor  will  the  relief  be  granted  upon  the  ground  that  com- 
plainant was  ignorant  of  his  defense  to  the  action  at  law 
where,  by  the  exercise  of  reasonable  diligence,  he  could  have 
learned  of  its  existence.^  Nor  will  equity  enjoin  a  sale  under 
execution  upon  the  ground  that  the  execution  is  void  when 
ample  remedy  may  be  had  by  an  action  of  trespass  against 
the  officer  making  the  levy.-*  And  the  fact  that  the  enforce- 
ment of  a  judgment  would  be  against  conscience,  will  not, 
of  itself,  warrant  an  injunction;  however  unjust  and  uncon- 
scionable  the   demand  may   be   on   which  judgment  was   ob- 


ment  of  a  judgment  founded  upon 
an  award  of  arbitrators.  The 
grounds  relied  upon  were  that  the 
original  claim  was  groundless, 
that  the  arbitrators  exceeded  the 
scope  of  their  authority,  and  that 
complainant  had  not  sufficient  no- 
tice of  the  time  and  place  of  hear- 
ing before  the  arbitrators.  The 
decision  of  the  chancellor  dismiss- 
ing the  bill  was  affirmed,  Redfield, 
J.,  saying:  "It  is  now,  I  appre- 
hend, well  settled,  that  a  court  of 
equity  will  not  examine  into  the 
foundation  of  the  judgment  of  a 
court  of  law,  upon  any  ground 
which  either  icas  tried  or  might 
have  'been  tried  in  the  court  of 
law.  The  judgment  of  a  court  of 
law  is  conclusive  upon  all  the 
world  as  to  all  matters  within  its 
cognizance.  If  a  party  fail  there 
by  not  presenting  his  defense, 
"When  he  should  have  done  it,  he 
can  have  no  redress  in  a  court  of 
equity;  much  less  can  he  expect 
relief  in  a  court  of  equity,  when 
he  has  had  a  full  trial  at  law  upon 
the  very  grounds  which  he  now 
"wishes  to  urge  anew.     For  a  court 


of  equity  to  grant  relief  in  any 
such  case,  would  be  to  sit  as  a 
court  of  errors  upon  the  proceed- 
ings of  the  courts  of  common  law, 
which  would  be  a  very  invidious, 
as  well  as  a  very  unwarrantable 
assumption.  Equity  has  some- 
times interfered  to  grant  relief, 
when  a  party,  by  accident  or  mis- 
take, without  his  own  default,  or 
by  the  fraud  of  the  opposite  party, 
has  failed  of  an  opportunity  to 
present  his  defense.  So,  too,  when 
the  ground  of  defense  was  exclu- 
sively of  an  equitable  character, 
and  such  as  would  not  avail  the 
party  at  law.  Beyond  this,  I  know 
of  no  good  ground  upon  which  a 
court  of  equity  could  interfere  to 
enjoin  the  party  from  pursuing  a 
judgment  at  law." 

2Tapp  V.  Rankin,  9  Leigh,  478; 
Field  V.  McKinney,  60  Miss.,  763. 

3  Harding  v.  Hawkins,  141  111., 
572,  31  N.  B.,  307,  33  Am.  St.  Rep., 
347;  Spokane  Coop.  M.  Co.  v. 
Pearson,  28  Wash.,  118,  68  Pac, 
165. 

4  Munis  V.  Herrera,  1  New  Max., 
362. 


172  INJUNCTIONS.  [chap.  III. 

tained,  if  through  neglect  or  carelessness  no  defense  was  in- 
terposed at  law,  relief  will  not  be  granted  in  equity.^  So 
where  defendant  in  the  action  at  law,  relying  upon  the  state- 
ment of  the  clerk  of  the  court  that  no  suit  was  pending  against 
him,  made  no  further  inquiry  and  failed  to  take  any  steps 
to  defend,  he  was  not  allowed  to  enjoin  the  judgment.**  So 
equity  will  not,  in  the  absence  of  fraud  or  collusion,  enjoin 
the  collection  of  a  judgment  against  a  municipal  corporation, 
at  the  instance  of  a  taxpayer,  upon  the  ground  that  the 
municipality  had  a  good  defense  to  the  action  in  which  the 
judgment  was  rendered.'''  And  where  the  complainant  had 
a  good  defense  at  law  but  failed  to  set  it  up  by  a  sufficient 
plea  or  answer,  the  relief  should  be  denied.'* 

§167.     The  rule  further  illustrated;  absence  of  witnesses. 

Where  it  plainly  appears  that  the  equities  ou  which  complain- 
ant asks  for  relief  against  a  judgment  might  have  availed 
him  in  a  plea  of  non  est  factum  in  the  action  at  law,  and  no 
excuse  appears  for  his  not  so  defending  at  law,  the  injunc- 
tion will  be  refused."  Nor  is  it  any  ground  for  relief  against 
the  judgment  that  the  pleas  interposed  by  defendant  to  the 
action  at  law  were  held  unsupportable,  since  the  proper 
remedy  is  by  revising  the  decision  of  the  court  of  law,  rather 
than  by  resorting  to  equity.^  ^  So  the  absence  of  a  material 
witness,  upon  the  trial  at  law,  affords  no  ground  for  enjoin- 
ing the  judgment,  since  the  court  of  law  had  ample  powers 

•'i  Ponder  v.  Cox,  26  Ga.,  485.  against    a    judgment    upon    a    bail 

'•  Hanna  v.  Morrow,  43  Ark.,  107.  bond  upon  the  ground  that  the  de- 

'  Carney  v.  Village  of  Marseilles,  fendant     had      not     executed    the 

136  111.,  401,  26  N.  E.,  491,  29  Am.  bond,  and   that,  therefore,  he  had 

St.   Rep.,  328.  regularly  no  day  in  court,  and  was 

■^  Melton  V.   Lewis,   74  Tex.,  411,  not    bound    to    take    any    steps    in 

12  S.  W.,  93.  the  action  at    law.     The    case    is 

"  Harden  r.  Garden,  7  Leigh,  1.57;  clearly  against  the  weight  of  au- 

Mershon    v.  Bank  of  the  Common-  thority,  since  the  plea  of  non  est 

wealth,   6   .J.   .1.    Marsh.,   438.     But  factum,   would    have   been    a    sufR- 

in   Spotswood   '".    Higgenbotham,   G'  cient  defense  to  the  action. 

Munf.,  313,  the  relief  was  granted  '"  Moore  v.  Dial,  3  Stew..  155. 


CHAP.  111.]  AGAINST  JUDGMENTS.  173 

to  give  relief  by  a  continuance,  or  a  new  trial,  and  even  though 
it  refused  so  to  do,  equity  will  not  revise  and  correct  the  errors 
of  courts  of  law."  Nor  will  the  fact  that  defendant  in  the 
original  action  was  unable  to  establish  his  defense,  owing  to 
the  unexpected  absence  of  the  plaintiff,  whom  he  had  not 
called  as  a  witness,  warrant  a  court  of  equity  in  enjoining 
the  judgment  in  the  absence  of  fraud. ^ - 

§  168.  Failure  of  proof  upon  trial  insufficient.  Failure  of 
proof  upon  the  trial  at  law  will  not,  in  the  absence  of  fraud, 
accident,  mistake,  or  other  adventitious  circumstances,  war- 
rant a  court  of  equity  in  granting  relief  against  the  judg- 
ment. Thus,  where  complainant  asks  an  injunction  against 
a  judgment,  alleging  in  his  bill  that  he  is  now  able  to  prove 
the  matter  of  his  plea  in  defense  of  the  action  at  law,  which 
he  was  unable  to  prove  upon  the  trial,  but  does  not  suggest 
fraud,  accident,  mistake,  or  other  circumstances  as  the  cause 
of  such  failure  of  proof,  the  injunction  will  not  be  allowed.^ ^ 
So  if  the  failure  or  omission  to  prove  facts  material  to  the 
defense  was  caused  by  the  advice  of  counsel,  equity  will  not 
relieve  against  the  judgment.'^  And  general  allegations  of 
difficulty  in  procuring  vouchers  and  of  unavoidable  delay  in 
settling  accounts  are  not  sufficient  to  warrant  the  interposi- 
tion of  equity.^  ^ 

§  169.  Failure  to  defend;  threats  of  bodily  harm;  instruct- 
ing* counsel  to  defend.  An  injunction  will  not  be  allowed  to 
restrain  the  enforcement  of  a  judgment,  or  to  declare  it 
invalid,  because  of  a  defect  of  which  the  person  complaining 
had  knowledge  during  the  pendency  of  the  suit,  but  of  which 
he  failed  to  avail  himself  at  that  time.^^  Nor  will  the  injunc- 
tion be  granted  on  the  ground  that  the  defendant  at  law  had 

11  Chapman  v.  Scott,  1  Cranch  C.  i^  Wilson  v.  Bastable,  1  Cranch 
C,  302.  C.  C,  394. 

12  Wilder  v.  Lee,  64  N.  C,  50.  i«Wilsey   v.   Maynard,    21    Iowa. 

13  Norris  v.  Hume,  2  Leigh,  334.     107. 
!•»  Fentress     »■.     Robins,     N.     C 

Term  R.,  177. 


174  INJUNCTIONS.  [chap.  III. 

a  good  and  sufficient  defense  to  the  action,  but  was  kept  from 
attendance  at  court  by  threats  of  bodily  harm,  it  not  appear- 
ing that  he  made  any  efforts  to  be  defended  by  counsel.^"^  Nor 
is  it  a  sufficient  excuse  for  neglecting  to  make  defense  at  law 
that  the  defendant  wrote  to  counsel  to  interpose  a  defense, 
but  that  his  letter  arrived  too  late  for  this  purpose,  and  where 
this  is  the  only  equity  relied  upon,  a  court  of  chancery  will  not 
interpose.i^ 

§170.  Usury;  maintenance;  infancy;  payment;  public  busi- 
ness; false  testimony.  Allegations  in  the  bill  of  usury  in  the 
contract  upon  which  judgment  was  obtained,  will  not  avail  in 
procuring  an  injunction,  since  the  usury  would  have  been  a 
good  and  sufficient  defense  to  the  original  action  before  judg- 
ment obtained.^ ^  So  an  injunction  will  not  be  granted  to  re- 
strain proceedings  under  a  verdict  upon  the  ground  of  main- 
tenance in  the  proceedings  resulting  in  the  judgment,  since 
the  question  of  maintenance  is  one  properly  to  be  determined 
by  a  court  of  law.-^  Nor  will  the  relief  be  allowed  upon  the 
ground  that  defendant  was  a  minor,  since  such  defense  might 
have  been  interposed  at  law ;  and  where  one  has  slept  upon 
his  legal  rights  until  they  are  barred  by  the  statute  of  limi- 
tations, he  is  estopped  from  relief  in  equitj\-i  So  judgment 
on  a  note  will  not  be  restrained  on  the  ground  that  payment 
had  been  made  upon  the  note  with  which  the  judgment  debtor 
was  not  credited,  it  not  appearing  that  he  had  made  any 
effort  to  establish  the  fact  of  payment  in  the  action  at  law.22 
And,  generally,  it  may  be  said  that  where  defendant  in  the 
action  at  law  had  any  defense  in  bar  of  the  action,  which 
he  neglected  to  interpose  in  the  legal  forum,  he  will  not  re- 
ceive the  aid  of  equity  in  restraining  the  judgment. ^^     Nor  in 

17  Duncan  v.  Gibson,  45  Mo.,  352.         20  Elborough  v.  Ayres,  L.   R.   10 

"^  Stanard  v.   Rogers,  4   Hen,   &     Eq.,  367. 
M.,   438.  21  Clark  i\  Bond,  Wright,   282. 

1"  Lansing  v.  Eddy,  1  Johns.  Ch.,        22  Commissioners  v.  Patrick,  Sm. 
49.  &  M.  Ch.,  110. 

2;i  Windwart  v.  Allen,  13  Md.,  196. 


CHAr.  in.]  AGAINST   JUDGMENTS.  175 

the  application  of  the  rule  does  it  matter  whether  the  judg- 
ment which  is  sought  to  be  enjoined  was  obtained  by  default 
or  upon  a  veTdict-^"*  And  proceedings  under  a  judgment  will 
not  be  enjoined  on  the  ground  that  the  defendant  in  the 
action  at  law,  being  engaged  in  public  business,  was  precluded 
from  attending  at  the  trial. ^^  Nor  will  the  relief  be  granted 
because  the  verdict  was  found  upon  the  testimony  of  one  wit- 
ness who  had  been  suborned  to  swear  falsely,  nor  because  the 
court  of  final  resort  had  refused  a  new  trial.^^ 

§171.  Action  for  tort;  bill  should  show  why  defense  not 
made  at  law.  Equity  will  not  interfere  to  restrain  a  judg- 
ment at  law  in  an  action  for  a  trot  where  the  equities  relied 
upon  as  the  foundation  of  the  bill  might  have  been  interposed 
as  a  defense  to  the  action  at  law ;  and  especially  will  the  in- 
terference be  denied  when  a  new  trial  has  been  refused  at 
law.-'^  Nor  will  the  relief  be  granted  upon  grounds  which 
were  urged  in  defense  of  the  action  at  law.^^  And  where  a 
bill  is  filed  for  an  injunction  in  a  case  where  complete  re- 
lief might  have  been  had  by  defending  at  law,  the  bill  must 
clearly  show  why  the  defense  was  not  asserted  in  the  legal 
forum.29 

§  172.     The  general  rule  applied  to  decrees  in  equity.     The 

general  rule  under  consideration  as  applicable  to  judgments 
at  law  applies  equally  to  decrees  in  equity.  And  a  final 
decree  in  equity  will  not  be  enjoined  on  grounds  of  equity 
existing  prior  to  its  rendition,  and  which  might  have  been  re- 
lied upon  in  the  original  suit  unless  the  equities  are  such  as 
to   authorize   a  bill   of  review.^^ 

24  Turpin  v.  Thomas,  2  Hen.  &  nied  at  law,  Smith  v.  Lowry,  i 
M.,   139.  Johns.  Ch.,  320. 

25  Smith  V.  Lowry,  1  Johns.  Ch.,  2s  Bachelder  v.  Bean,  76  Me.,  370. 
320.  29  Yancy   v.    Fenwick,    4   Hen.    & 

26  Id.  M.,   423. 

27  Meredith  v.  Benning,  1  Hen.  ^o  Moran  v.  Woodyard,  8  B.  Mon., 
&  M.,  585.     And  see  as  to  the  re  537. 

lief  where  a  new  trial  has  been  de- 


176  INJUNCTIONS.  [chap.  111. 

§  173.  Judgment  not  enjoined  when  remedy  by  appeal  avail- 
able; rule  not  applicable  where  no  appeal  exists.  The  general 
doctrine  under  discussion,  denying  relief  by  injunction  against 
the  enforcement  of  a  judgment  when  adequate  relief  might 
be  had  at  law,  finds  frequent  illustration  in  cases  where  the 
extraordinary  aid  of  this  writ  is  invoked  to  restrain  proceed- 
ings under  a  judgment  from  which  full  and  complete  relief 
might  be  had  in  the  usual  course  of  procedure  by  appeal. 
And  upon  this  point  the  rule  is  well  established  that  courts 
of  equity  will  not  lend  their  aid  by  injunction  against  the  en- 
forcement of  judgments  when  a  sufficient  remedy  exists  by 
appeal  or  writ  of  ceriiorari  to  revise  the  proceedings  at  law. 
A  plain,  adequate  and  specific  remedy  existing  by  appeal,  he 
who  is  dissatisfied  with  a  judgment  must  pursue  that  remedy, 
and  will  be  denied  relief  by  injunction. when  no  sufficient  rea- 
son is  shown  why  the  remedy  at  law  is  not  pursued.^^  Thus, 
a  defendant  in  a  judgment  who  fails  to  appeal  therefrom,  or 
to  join  in  an  appeal  taken  by  plaintiff,  thereby  acquiescing  in 

31  Manning    v.    Hunt,     36     Tex.,  Cal.,    21,    59    Pac,    201;     Schilling 

118;    Galveston,  H.  &  S.  A.  R.  Co.  v.  Reagan,  19  Mont.,  508,  48  Pac, 

r.  Ware,  74  Tex.,  47,  11  S.  W.,  918;  1109;    Beck  v.  Frausham,  21  Mont., 

Texas-Mexican  R.  Co.  v.  Wright,  88  117,    53    Pac,     96;      Alexander    v. 

Tex.,  346,  31  S.  W.,  613,  31  L.  R.  Fransham,  26  Mont,  496,  68   Pac, 

A.,    200;     Palmer    v.   Gardiner,    77  945;    Langley  v.  Ashe,  38  Neb.,  53, 

111.,  143;    Village  of  Dolton  v.  Del-  56  N.  W.,  720;     Mayer  v.    Nelson, 

ton,    201   111.,   155,   66    N.    E.,   323;  54  Neb.,  434,  74  N.  W.,  841;    Bow- 

Savoie  v.  Thibodaux,   29   La.   An.,  man  v.  McGregor,  6  Wash.,  118,  32 

51;    Schwab  v.  City  of  Madison,  49  Pac,  1059;    Bidemiller  v.  Elder,  32 

Ind.,  329;    De  Haven  v.  Covalt,  83  Wash.,  605,  73  Pac,  687;    Railway 

Ind.,  344;    Parsons  v.  Pierson,  128  Co.  v.  Ryan,  31  West  Va.,  364,  6  S. 

Ind.,  479,  28  N.  E.,  97;    Naughton  E.,  924,  13  Am.  St.  Rep.,  865;  Shay 

r.    Dinkgrave,    25     La.     An.,     538;  v.  Nolan,  46   West  Va.,   299,   33   S. 

I-'oshee  v.  McCreary,  123  Ala.,  493,  E.,  225;    Edmanson  v.  Best,  6  C.  C. 

26   So.,   309;     Shaul   v.   Duprey,   48  A.,  471,  57   Fed.,  531.       See,   also, 

Ark.,  331,  3  S.  W.,  366;    Wingfield  Hopkins    v.    Medley,     99    111.,     509. 

/;.   McLure,  48  Ark.,  510,  3   S.  W.,  But    see    Tobriner    v.    White,     19 

439;     Ward    /'    Derrick,    57    Ark.,  App.  D.  C,  163.    And  in  Tennessee 

500,  22  S.  W.,  '.il;    Fuller  v.  Towns-  a  contrary  doctrine  would  seem  to 

ley  Co.,   58  Ark.,   314,   24    S.    W.,  prevail.     See  Williams  v.  Pile,  104 

fi.SB;     Hollenbeak     ?'.     McCoy,     127  Tenn.,  273,  56  S.  W..  833. 


CUAP.  Jll.J  AGAIXST    JUDCi.MKNT.S.  177 

the  judgment  which  is  affirmed  on  the  appeal  taken  by  plain- 
tiff, can  not  afterward  enjoin  the  enforcement  of  the  judg- 
ment.^- So  an  order  of  seizure  and  sale  of  property  will  not 
be  enjoined  because  of  insufficiency  of  the  evidence  upon 
which  the  order  was  based,  but  the  party  aggrieved  will  be 
left  to  pursue  his  remedy  by  appeal  from  the  order.'  In- 
deed, upon  an  application  for  an  injunction  to  restrain  the 
enforcement  of  a  judicial  order  the  court  will  not  entertain 
any  question  as  to  the  sufficiency  of  the  evidence  to  author- 
ize the  order,  since  the  remedy  upon  that  point  must  be  sought 
by  appeal  from  the  action  of  the  court  complained  of,  instead 
of  by  injunction.-  So  equity  will  not  enjoin  a  judgment  in 
attachment  or  garnishment  upon  the  ground  that  no  affidavit 
was  filed,^  or  that  the  judgment  was  rendered  for  an  amount 
greater  than  that  named  in  the  affidavit,*  since  such  errors 
may  be  redressed  on  appeal.  Nor  will  equity  enjoin  the  en- 
forcement of  a  judgment  rendered  against  complainant  by 
a  subordinate  court,  imposing  a  fine  for  violation  of  a  city 
ordinance,  upon  the  ground  of  insufficiency  of  the  proceed- 
ings to  warrant  the  judgment,  when  there  is  a  plain,  adequate 
and  sufficient  remedy  by  appeal  from  the  action  of  the  in- 
ferior court.-'"'  So  if  sufficient  relief  could  have  been  had 
by  appeal  from  the  judgment,  but  the  party  aggrieved  has  been 
negligent  in  prosecuting  his  appeal  and  has  thereby  lost  his 
remedy,  he  will  be  denied  relief  by  injunction  against  the 
judgment.''  So,  too,  a  judgment  debtor  who  has  lost  his 
remedy  by  appeal  by  reason  of  a  defect  in  his  own  proceed- 
ings will  not  be  allowed  to  enjoin  the  judgment.''^    And  where 

•1-  Savoie    v.    Thibodaux,    29    La.  *  Gum-Blastic   R.    Co.    v.    Mexico 

An.,   51.  P.  Co.,  140  Ind.,  158,  39  N.  E.,  443. 

1  Naughton  v.  Dinkgrave,  25  La.  30  L.  R.  A.,  700. 

An.,  538.  ^'  Schwab  v.  City  of  Madison,  49 

-  City  of  Shreveport  v.  Flournoy,  Ind.,  329. 

26  La.  An.,  709.  «  Palmer  r.  Gardiner,  77  III.,  143. 

;»  Hart  V.  O'Rourke,  151  Ind.,  205.  '  Long  r.   Smith,  39  Tex.,  160. 
51  N.  E.,  330. 
12 


178  INJUNCTIONS.  [chap.  Ill, 

the  complainant  has  appealed  from  a  judgment  rendered  by 
a  justice  of  the  peace,  the  refusal  of  the  latter  to  approve 
the  appeal  bond  is  no  ground  for  an  injunction  against  the 
judgment,  since  there  is  an  adequate  remedy  by  mandamus 
against  the  justice.^  Where,  however,  there  is  no  provision 
under  the  law  for  an  appeal  or  other  proceeding  to  review  a 
judgment,  or  where,  for  any  other  reason,  an  appeal  is  impos- 
sible, the  rule  can  have  no  application  and  relief  may  be 
granted  if  the  case  is  in  other  respects  one  of  equitable  cog- 
nizance. Thus,  where  a  judgment  is  for  an  amount  less  than 
that  from  which  an  appeal  or  certiorari  will  lie,  the  relief  is 
properly  granted  if  the  case  is  in  other  respects  one  calling 
for  the  interposition  of  equity .^  So  where  a  judgment  has 
been  rendered  in  an  action  against  a  corporation  which  is 
in  the  hands  of  a  receiver,  the  latter,  not  being  a  party  to 
the  action  at  law,  has  no  remedy  by  appeal  from  the  judgment 
and  he  may  therefore  resort  to  equity  in  the  first  instance.^ ^ 

§  174.    Exception  to  rule  when  defendant  not  served  with 

process.  Notwithstanding  the  general  rule  as  stated  and  illus- 
trated in  the  preceding  section,  denying  relief  by  injunction 
when  an  adequate  remedy  exists  by  appeal  from  the  judgment, 
an  exception  to  the  rule  has  been  recognized  where  defend- 
.  ant  in  the  judgment  has  not  been  served  with  process  in  the 
action  in  which  the  judgment  was  recovered.  And  such  want 
of  service  has  been  regarded  as  affording  sufficient  ground 
for  enjoining  the  judgment,  even  though  the  error  be  one 
which  would  avail  on  appeal  or  writ  of  error,  since  in  such 
case,  it  is  held,  defendant  is  not  obliged  to  appeal  instead  of 
resorting  to  equity.^ ^ 

8  Boyd  V.  Weaver,  134   Ind.,  266,  i"  Rogers  i;.  Haines,  114  Ala.,  50, 

33  N.  E.,  1027.  21   So.,  411. 

'J  Galveston,  H.  &  S.  A.  R.  Co.  r.  n  Robinson    v.    Reid's    Ex'r,     50 

Ware,  74  Tex.,  47,  11   S.  W.,  918;  Ala.,  69.     For  a  full  discussion  of 

Gulf,  C.  &  S.  F.  R.  Co.  )'.  Rawlins,  this  subject  see  §  229,  post. 
80  Tex.,  579,  16  S.  W.,  430. 


CHAP.  III.]  AGAINST   JUDGMENTS.  179 

§  175.  Execution  not  enjoined  when  relief  available  by- 
application  to  same  court.  Since  courts  of  law  exercise  a 
somewhat  summary  power  over  their  own  process,  and  may 
in  many  cases  grant  complete  relief  against  irregularities  in 
the  enforcement  of  executions  upon  their  judgments  merely 
upon  motion  or  petition,  it  not  unfrequently  happens  that 
applications  are  made  for  injunctions  against  executions  at 
law,  when  ample  relief  might  be  had  by  application  to  the 
court  in  which  the  judgment  was  rendered.  And  the  doctrine 
is  well  established^  that  an  injunction  will  not  be  allowed 
against  an  execution  at  law,  to  restrain  its  enforcement  and 
satisfaction,  when  by  application  to  the  court  in  which  the 
judgment  was  rendered,  upon  motion  or  petition,  satisfactory 
relief  may  be  had.^^  Thus,  where  the  ground  relied  upon  in 
support  of  a  bill  for  an  injunction  against  a  sale  under  judg- 
ment consists  in  certain  alleged  irregularities  and  defects  in 
the  proceedings  of  the  sheriff,  which  are  exclusively  within 
the  cognizance  of  the  court  from  which  the  execution  issued 
and  in  which  the  proceedings  were  had,  and  it  is  entirely 
competent  for  that  court  to  give  relief  by  setting  aside  the 
sale  upon  motion,  equity  will  not  entertain  jurisdiction  by 
injunction.i^  And  if,  under  the  practice  of  the  state,  there 
is  ample  remedy  at  law  for  staying  the  enforcement  of  an 
execution,  equity  will  not  enjoin,  and  a  bill  for  an  injunction 
in  such  case  is  demurrable,  because  of  the  remedy  at  law.^* 
So  where  relief  might  have  been  had  by  motion  to  vacate 
and  set  aside  the  judgment  itself,  its  execution  will  not  be 

12  Mayo    V.    Bryte,    47    Cal.,   626;  Ore.,   65,  63   Pac,  824,  84  Am.   St. 

Moulton  V.  Knapp,  85  Cal.,  385,  24  Rep.,    750;     Ward    v.    Derrick,    57 

Pac,  803;    Wilson  v.  Miller,  30  Md.,  Ark.,   500,   22    S.   W.,   93;     Crocker 

82;     Gorsuch   v.    Thomas,    57    Md.,  v.   Allen,    34    S.   C,    452,    13    S.    E. 

334;     Chambers  v.   Penland,  78  N.  650,  27  Am.  St.  Rep.,  831.     See  also 

C,  53;    Russell  v.  O'Dowd,  48  Ga.,  Shaul  v.   Duprey,    48   Ark.,   331,   3 

474;     Cardinal    v.    Eau    Claire  L.  S.  W.,   366;     Wingfield  v.   McLure, 

Co.,   75  Wis.,  404,   44  N.   W.,  761;  48  Ark.,  510,  3  S.  W.,  439. 
Stein  V.  Benedict,  83  Wis.,  603,  53         is  Wilson  v.  Miller,  30  Md.,  82. 
N.  W.,  891;    Marks  v.  Stephens,  38         "Russell  v.  O'Dowd,  48  Ga.,  474. 


180  INJUNCTIONS.  [chap.  III. 

restrained.^ ''^  And  where  it  is  sought  to  enjoin  a  judgment  for 
want  of  service  of  process,  of  which  the  complainant  eouLd  have 
availed  himself  by  a  motion  to  set  it  aside,  it  is  incumbent  upon 
him  to  allege  and  prove  that  he  had  no  notice  or  knowledge 
of  the  rendition  of  the  judgment  before  the  expiration  of  the 
time  in  which  he  could  have  made  such  a  motion  in  the  court 
where  the  judgment  was  rendered.^ <^  So  where  the  defend- 
ant has  appealed  from  a  judgment  rendered  against  him  but 
the  clerk  of  the  court  has  refused  to  approve  the  supersedeas 
bond,  the  enforcement  of  the  judgment  will  not  be  enjoined, 
since  there  is  an  adequate  remedy  by  application  to  the  court 
to  compel  the  clerk  to  do  his  duty.^"^  And  where  the  defend- 
ant, having  taken  an  appeal  from  a  judgment,  had  failed  to 
tile  his  transcript  in  the  upper  court  within  the  proper  time, 
relying  upon  an  agreement  with  the  judgment  creditor  for  a 
settlement  of  the  judgment,  and  the  latter  thereupon  procures 
an  affirmance  of  the  judgment  upon  certificate  or  short  rec- 
ord and  is  proceeding  to  enforce  it,  relief  will  be  denied  since 
there  was  an  adequate  remedy  by  motion  in  the  reviewing 
court  to  set  aside  the  order  of  affirmance. i'^  But  where,  after 
the  rendition  of  a  judgment  against  the  defendant,  he  had 
an  opportunity  by  application  to  the  court  to  have  the  judg- 
ment set  aside  but  was  induced  by  the  fraudulent  represen- 
tations of  the  plaintiff  not  to  make  his  application  until  it  was 
too  late,  relief  against  the  execution  of  the  judgment  is 
properly  granted.^"  And  an  injunction  may  be  granted  to 
restrain  the  enforcement  of  an  execution  when  the  amount 
actually   due   the  execution   creditor  is  tendered  him   and  is 

1-.  Kitzmaii  c.  Minn.  T.  Mfg.  Co..  Lohmiller,   20    C.     C.     A.,    274.   74 

10  N.  Dak.,  26,  84  N.  W.,  585;  Crist  Fed.,  23. 

V.    Cosby,    11    Okla.,    635,    69    Pac,  ""Supreme    Lodge    /'.    Carey,    57 

885;     Brown   v.   Chapman,   90   Va.,  Kan.,  655,  47  Pac,  621. 

174,  17  S.  E.,  855;  Cowley  r.  North-  i^Roebling   v.    Stevens     Co.,     93 

ern'  Pacific  R.  Co.,  46  Fed..  325.  Ala.,  39,  9  So.,  369. 

HI  Massachusetts   B.    L.    Assn.    r.  ^'■>  Delaney  v.  Brown,  72  Vt.,  344, 

47   Atl.,    1067. 


CHAT.  III. J  AGAINST    .TUD(5MENTS.  181 

brought  into  coiirt  for  his  use,  even  though  relief  might  be 
had  by  motion  in  the  court  from  which  the  execution  issued, 
when  defendant  appears  and  answers  upon  the  merits,  without 
raising  the  question  of  jurisdiction  or  mode  of  proceeding. ^^ 
§  176.  Sale  under  execution  not  enjoined  because  of  conflict 
among  creditors.  Upon  principles  similar  to  those  above  dis- 
cussed and  illustrated,  an  injunction  will  not  be  allowed 
against  a  sale  of  personal  property  under  execution  in  a  con- 
test between  different  creditors  claiming  a  right  to  the  prop- 
erty under  execution,  but  the  parties  aggrieved  will  be  left 
to  their  common  law  remedies,  which  are  regarded  as  suffi- 
cient for  such  a  case.^^  Nor  will  a  sale  of  personal  property^ 
under  executions  be  enjoined  when  there  are  conflicting' 
claimants  asserting  their  rights  under  different  executions, 
merely  because  the  bill  alleges  that  the  justice  of  the  peace 
before  whom  the  contest  is  pending  has  combined  with 
some  of  the  parties  in  interest  to  defeat  complainants'  right; 
since  a  court  of  equity  will  not  presume  that  the  justice  will 
administer  the  law  improperly,  and  if  he  does  so  administer 
it  his  errors  should  be  corrected  at  law  and  not  in  equity.-- 

§177.  Two  executions  on  same  judgment;  premature 
execution;  execution  without  judgment.  The  issuing  of  two 
executions  upon  the  same  judgment  does  not  authorize  the 
interposition  of  equity,  since  the  party  aggrieved  can  find 
sufficient  remedy  at  law.  Nor  will  the  fact  that  an  execution 
has  issued  prematurely  entitle  the  defendant  in  execution  to 
have  an  injunction  against  it  perpetuated,  if  the  judgment 
creditor  would  be  entitled  to  another  as  soon  as  the  first  is 
perpetually  enjoined.-^  So  where  an  execution  is  issued  with- 
out any  legal  warrant  or  authority,  there  being  no  judgment 
or  order  of  court  upon  which  it  is  based,  and  it  is  being  levied 

20  Miller   v.    Longacre,  26     Ohio         -;•■!  Elliott  r.  Elmore,  16  Ohio,  27; 
St.,  291.  Dayton     /■.    Commercial    Bank,     6 

21  Endres   r.    Lloyd,   56  Ga.,   547.     Rob.    (La.),  17. 

22  Id. 


182  INJUNCTIONS.  [chap.  III. 

upon  personal  property,  equity  will  not  interfere  by  injunction, 
since  the  person  aggrieved  may  have  full  relief  for  the  injury 
sustained  by  an  action  for  damages.^^ 

§  178.  Neg-lig-ence  in  defending  at  law  a  bar  to  injunction. 
It  may  also  be  asserted  as  a  general  rule  that  a  judgment  will 
not  be  enjoined  because  of  some  defense  which  was  available 
at  law,  when  it  is  not  shown  that  the  failure  to  defend  at  law 
was  attributable  to  the  opposing  party,  or  to  something  in  the 
nature  of  accident,  and  when  such  failure  appears  to  be  the 
result  of  want  of  diligence  on  the  part  of  him  who  seeks  the 
relief.  Thus,  the  fact  that  the  consideration  for  the  giving  of 
a  promissory  note  was  the  purchase  of  certain  real  estate, 
which  complainant  was  induced  to  buy  upon  defendant's  rep- 
resentations that  he  could  make  title  to  the  land,  which  repre- 
sentations were  not  made  good,  will  not  justify  an  injunction 
against  a  judgment  upon  the  note  when  such  defense  might 
have  been  urged  in  the  suit  upon  the  note.-^  Nor  will  a 
court  of  equity  enjoin  a  judgment  at  law  upon  grounds  which, 
by  the  use  of  due  diligence,  might  have  been  used  in  defense 
of  the  action  at  law,  or  where  the  proceedings  in  equity  for 
an  injunction  rest  upon  a  defense  which  is  equally  available 
at  law.2^  So  a  sale  under  a  judicial  decree  will  not  be  enjoined 
in  behalf  of  one  who  was  a  party  to  the  decree,  upon  a  new 
bill  filed  by  him  for  that  purpose,  when  he  shows  no  equity 
but  such  as  was  or  might  have  been  urged  in  the  original 
action  before  the  decree  therein.-'^ 

§  179.  Judgment  not  enjoined  upon  grounds  which  were 
urged  as  a  defense  at  law.  As  still  further  illustrating  the 
general  doctrine  under  discussion,  a  judgment  will  not  be 
enjoined  merely  because  it  is  unjust  and  oppressive,  when 
defendant  in  the  judgment  has  had  a  fair  opportunity  to  be 

2»  Davidson  v.  Floyd,  15  Fla.,  -"  County  Commissioners  r.  Bry- 
6()7.  son,   13   Fla.,   281. 

25  Howell  V.  Motes,  54  Ala.,  1.  -^  Brinson     r.     Wessolowsky,    58 

Ga.,  293. 


CIIAr.  III.]  AGAINST   JUDGMEN^TS.  183 

heard  upon  a  defense  upon  which  the  court  of  law  had  com- 
plete jurisdiction,  even  though  the  court  of  equity  may  be  of 
opinion  that  the  court  of  law  acted  erroneously.-^  The  gov- 
erning principle  in  such  case  is  that  when  a  question  has  been 
once  fully  considered  and  decided  by  a  competent  tribunal, 
it  can  not  be  opened  to  review  upon  the  same  facts  before 
another  tribunal  of  merely  concurrent  powers,  without  pro- 
ducing an  unseemly  strife  between  such  courts.  And  addi- 
tional reason  is  found  for  withholding  relief  in  such  case  in  the 
fact  that  courts  of  equity  do  not  sit  in  review  or  in  judgment 
over  the  errors  of  courts  of  law.^^  So,  too,  the  defendant  in 
a  judgment  recovered  in  favor  of  a  corporation  can  not  enjoin 
the  enforcement  of  the  judgment  upon  the  ground  that  the 
plaintiff  was  not  legally  incorporated,  when  such  defense  had 
been  interposed  in  the  action,  the  decision  of  the  court  upon 
that  question  being  res  jiulicata.^^ 

§  180.  The  rule  further  illustrated.  When  it  is  sought  to 
enjoin  a  judgment  upon  the  ground  of  a  good  defense  to  a 
part  of  the  demand,  which  came  to  defendant's  knowledge  too 
late  to  be  used  in  defense  of  the  action,  he  must  show  that  the 
failure  to  urge  such  defense  was  unmixed  with  negligence 
on  his  own  part,  and  must  also  tender  or  bring  into  court  the 
amount  which  is  admitted  to  be  due.^^  And  a  judgment  will 
not  be  enjoined  upon  the  ground  of  facts  which  are  alleged  to 
have  rested  exclusively  within  the  knowledge  of  plaintiff  in 
the  action,  and  which  are  charged  to  be  necessary  to  a  fair  and 

28  Holmes  r.  Steele,  28  N.  J.  Eq.,  tract,  although  the  defendant  has 

173.  failed    to    interpose    such    defense 

20  Holmes  r.  Steele,  28  N.  J.  Eq.,  to  the  action,  the  code  aflirmative- 

173;    Commercial  Union  Assurance  ly   providing  that  such   failure  to 

Co.  V.  Scammon,  13  111.,  627,  23  N.  defend  at  law  shall  not  prevent  re- 

E.,  406.     But  in  West  Virginia  it  lief    in   equity.     Ludington  v.   Tif- 

is    held,    under    the    code    of    that  fany,   6   West    Va.,    11.     And    see 

state,  that  a  judgment  in  an  action  Code  of  West  Virginia,  ch.  126,  §  6. 
upon  contract  may  be  enjoined  by         ^o  Mahan       r.       Accommodation 

the  defendant  upon  the  ground  of  Bank,  26  La.  An.,  34. 
want  of  consideration  in  the  con-         3i  Hill   v.  Harris,   42   Ga.,   412. 


184  INJUNCTIONS.  [chap.  III. 

just  decision  at  law,  when  defendant  has  submitted  to  trial 
in  the  action  without  availing  himself  of  his  right  by  a  bill  of 
discovery  to  obtain  the  desired  facts. ^-  So  a  court  of  equity 
will  not  enjoin  a  judgment  at  laA\  on  the  ground  that  it  was 
rendered  upon  an  illegal  arrest,  an  action  at  law  being  the 
appropriate  remedy  for  such  a  grievance.-^^  And  especially 
w^ill  the  relief  be  withheld,  in  such  case,  when  defendant  in 
the  action  voluntarily  appeared  and  submitted  himself  to  the 
jurisdiction  of  the  court  and  confessed  judgment.''^ 

§  181.  Neglect  of  party  or  counsel;  dischaxge  in  bank- 
ruptcy. As  still  further  illustrating  the  general  doctrine  under 
discussion,  it  is  to  be  observed  that  an  injunction  will  not  be 
allowed  against  a  judgment  because  of  the  neglect  of  a  party 
to  the  action  or  of  his  counsel,  when  such  neglect,  if  excusable, 
might,  under  a  statute  of  the  state,  be  made  the  foundation 
of  a  motion  for  relief  in  the  original  cause.^-''  And  a  judgment 
debtor  will  not  be  allowed  to  enjoin  the  judgment  because  of 
his  discharge  in  bankruptcy  after  incurring  the  obligation  on 
which  the  action  was  brought,  when  he  has  neglected  to  avail 
himself  of  his  discharge,  or  to  plead  it  in  defense  of  the 
action.^^  But  M-here  the  debtor  obtains  his  discharge  in  bank- 
ruptcy after  judgment  rendered  against  him  upon  a  cause  of 
action  accruing  before  bankruptcy  and  provable  under  the  act, 
the  judgment  may  be  enjoined  upon  his  application.-''^ 

§  182.  Further  applications  of  the  rule.  Where  by  statute 
a  sheriff  has  ample  remedy  at  law  in  case  of  proceedings  brought 
against  him  for  selling  property  on  execution  to  which  there 
are  conflicting  rights,  and  where  he  is  not  obliged  to  proceed 
witlioni    being  indemnified  for  such   damages  as  he  may  sus- 

■■■■■^  Dilly   r.   Barnard,  8    G.   &    J.,         •'*  Id. 
170.     See  also  Lansing  v.  Eddy,   1         ■•'••Borland    r.  Thornton,  12   Cal., 
Johns.   Ch.,   49.  440. 

■■!'i  Baldwin  v.  Murphy,  82  111.,  :•'■  .Tones  v.  Coker,  53  Miss.,  195; 
485.  Miller  r.  Clements,  54  Tex.,  351. 

:"  Earley  r.  Bledsoe,  59  Tex.,  488. 


CHAr.  111.  1  AGAINST   JUDGMENTS.  185 

tain,  he  will  not  be  permitted  to  enjoin  proceedings  at  law 
brought  against  him  for  having  sold  property  the  title  to  which 
is  in  dispute.^*^  It  is  to  be  observed,  however,  that  a  statute 
providing  for  the  taking  of  an  indemnifying  bond  by  the  officer 
making  a  levy  does  not  preclude  a  third  person  claiming  to 
be  the  owner  of  the  property  levied  upon  from  his  right  to  an 
injunction  where  the  remedy  at  law  is  incompleted'^  And  a 
distinction  is  drawn  between  the  case  of  one  claiming  as  an 
incumbrancer  and  as  owner  of  the  property;  and  while  the 
relief  will  not  be  granted  in  favor  of  an  incumbrancer,  the  real 
owner  of  the  property  is  entitled  to  protection.'*'^ 

§  183.  Exceptions  to  the  rule.  To  the  general  rule  as  laid 
down  in  the  preceding  sections,  that  equity  will  not  enjoin  a 
judgment  at  law  where  the  defense  might  have  been  urged 
upon  the  trial,  there  are  some  exceptions  resting  upon  well 
recognized  principles  of  equity  jurisprudence.  Most  of  these 
exceptions  will  be  found  to  fall  under  the  heads  of  fraud,  acci- 
dent, mistake,  surprise  and  ignorance,  and  will  be  noticed 
hereafter  in  this  chapter.  It  may  be  said,  generally,  that  where 
it  appears  that  the  courts  of  law  do  not  afford  as  safe  and  con- 
venient a  remedy  as  courts  of  equity,  or  where  it  is  doubtful 
whether,  according  to  the  jurisdiction  and  practice  of  the 
common  law  courts,  the  defense  is  legally  available  there, 
or,  if  available,  it  is  attended  with  difficulty  and  embarrass- 
ment, equity  may  grant  relief  against  the  judgment.^^  So 
where  strong  equities  exist  against  the  enforcement  of  a 
judgment,  which,  from  the  nature  of  the  case,  could  not  have 
been  pleaded  in  defense  of  the  action  at  law,  they  may  afford 
ground  for  restraining  the  judgment.'*-     And   the   fact  that 

38  Storrs  V.  Payne,  4  Hen.  &  M.,  Leigh,  85  Mewborn  r.  Glass,  5 
506.  Humph.,    520;    Cornelius     v.    Mor- 

39  Walker  v.  Hunt,  2  West  Va.,  row,  12  Heisk.,  630,  affirming  S.  C. 
491.  But  see  Baker  v.  Rinehard,  suh  nom.  Cornelius  v.  Thomas,  1 
11  West  Va.,  238.  Tenn.  Ch.,  283.  And  see  Spotswood 

40  Walker  v.   Hunt,   2   West  Va.,  v.  Higgenbotham,  6  Munf.,  313. 
491;  Bowyer  r.  Creigh,  3  Rand.,  25.         +2  Scott    r.    Shreeve,    12    Wheat, 

41  Crawford      v.     TTiurmond.      3  605. 


186  INJUNCTIONS.  [chap.  III. 

the  rights  in  issue  are  equitable  rather  than  legal  in  their 
nature,  will  afford  additional  reason  for  enjoining  the  pro- 
ceedings.'*^ 

§  184.  Exceptions  when  equities  can  not  be  asserted  at 
law.  It  may  sometimes  happen  also  that  the  equities  relied 
upon  for  an  injunction  can  not  be  asserted  in  a  court  of  law, 
and  in  such  cases  a  departure  from  the  general  rule  becomes 
necessary  in  order  to  give  complete  relief.^^  Thus,  where  the 
foundation  of  a  bill  to  enjoin  a  judgment  is  an  agreement  of 
such  a  nature  that  it  could  not  have  been  urged  in  defense  of 
the  action  at  law,  equity  may  properly  interfere  and  enjoin 
the  enforcement  of  the  judgment.-*^  So  a  sale  of  complainant's 
personal  property  under  an  execution  against  another  person 
will  warrant  the  interference  of  equity,  where  complainant's 
title  to  the  property  is  such  as  to  prevent  its  being  followed 
in  the  hands  of  purchasers,  and  such  that  an  action  of  trespass 
can  not  be  maintained  against  the  officers  or  the  plaintiff's  in 
execution.*^  But  where  a  person,  not  a  party  to  the  proceed- 
ings at  law,  asks  to  enjoin  a  sale  of  personal  property  under 
an  execution  on  the  ground  of  a  prior  incumbrance  upon  the 
same  property,  the  court  will  not  interfere."*^ 

§  185.  Effect  of  insanity  or  derangement.  It  may  also 
happen  that  the  peculiar  circumstances  of  a  particular  case 
will  warrant  equity  in  a  departure  from  the  general  rule 
denying  relief  in  cases  where  the  defense  should  have  been 
urged  at  law.  Thus,  it  has  been  held  sufficient  to  warrant  a 
perpetual  injunction  against  a  judgment  in  slander,  that  at 
the  time  the  defamatory  words  were  uttered,  as  well  as  when 

43  Crawford  v.  Thurmond,  3  *■<  Hibbard  v.  Eastman,  47  N.  H., 
Leigh,  85.  507. 

44  Hibbard  v.  Eastman,  47  N.  H.,  4o  Anderson  v.  Biddle,  10  Mo.,  23, 
507;    Anderson   v.    Biddle,    10   Mo.,  4- Bowyer  v.  Creigh,  3  Rand.,  25. 
23;  Walker  v.  Heller,  90  Ind.,  198;  See     also     as     to     incumbrances, 
Rollins  r.   Hess,  27  West  Va.,  570.  Walker  v.  Hunt,  2  West  Va.,  491. 
But   see,    contra,   Kerr   v.    Hill,    27 

West  Va.,  576. 


CHAP.  III.]  AGAINST   JUDGMENTS.  187 

the  judgment  was  obtained,  the  person  uttering  such  words 
was  insane  or  in  a  state  of  partial  mental  derangement  on 
the  subject  to  which  the  words  had  reference."*^  Such  excep- 
tions, however,  resting  upon  the  special  circumstances  of  par- 
ticular cases,  in  no  way  weaken  the  general  rule. 

§  186.  Prior  jurisdiction  of  equity.  Another  exception  to 
the  rule  denying  relief  by  injunction  where  defense  might 
be  made  at  law  has  been  based  upon  the  fact  of  jurisdiction 
in  equity  having  first  attached.  Thus,  it  has  been  held  that 
when  a  bill  presents  a  proper  case  for  enjoining  a  fraudulent 
judgment,  it  is  immaterial  whether  the  law  would  afford  relief 
after  the  judgment  has  been  enforced  by  execution,  since  the 
jurisdiction  of  equity  having  first  attached  in  the  bill  to  enjoin 
upon  the  ground  of  fraud,  it  can  not  be  ousted  by  a  subsequent 
proceeding  in  a  court  of  law."*^ 

§  187.  Assignee  of  note.  As  a  further  exception  to  the 
general  rule  denying  relief  against  a  judgment  where  the 
defense  should  have  been  interposed  at  law,  an  injunction 
has  been  granted  against  a  judgment  in  favor  of  the  assignee 
of  a  note  on  the  ground  of  fraud  and  misrepresentation  in  the 
value  of  the  article  which  was  the  consideration  for  the  note, 
the  assignee  having  taken  the  note  with  notice.^*^  But  a  court 
of  equity  will  not  enjoin  a  judgment  in  favor  of  an  assignee 
of  a  note  for  valuable  consideration,  who  is  ignorant  of  com- 
plainant's equities  when  he  takes  the  note,  even  though  such 
equities  might  warrant  an  injunction  against  the  payee.^i 

§  188.  Court  itself  will  not  take  notice  of  failure  to  defend 
at  law.  When  the  judgment  debtor  has  failed  to  defend  at 
law  and  afterward  attempts  to  enjoin  the  judgment  upon 
grounds  constituting  a  defense  either  at  law  or  in  equity,  the 
court  will  not  of  its  own  motion  take  notice  of  the  failure  to 

48  Horner  v.   Marshall's     Adm'x,         so  King  v.  Baker,  1  Yerg.,  450. 

5  Munf.,  466.  si  Donelson  v.  Young,  Meigs,  155. 

49  Gainty    t?.    Russell     40     Conn., 
450. 


188  INJUNCTIONS.  [chap.  IFI. 

defend  at  law.  And  if  the  defendant  in  the  injunetioii  suit 
does  not  avail  himself  of  such  failure,  but  answers  over  on 
the  merits,  equity  may  entertain  jurisdiction  and  enjoin  the 
judgment.^2  jf^  however,  the  defense  is  purely  legal,  and 
in  its  nature  un^t  for  equity  jurisdiction,  the  defendant  in  the 
injunction  suit  may  insist  upon  the  want  of  jurisdiction  at 
the  hearing,  even  though  he  may  not  have  demurred,  but 
pleaded  to  the  merits  instead.^^ 

§189.  Sickness  of  defendant;  coverture.  Sickness  of  th(^ 
defendant  at  law  at  the  time  process  is  served  upon  him  is 
held  sufficient  to  warrant  an  injunction  against  the  judgment, 
where  the  sickness  is  such  as  to  unfit  the  defendant  for  the 
transaction  of  business,  even  though  no  defense  was  interposed 
to  the  action.^*  So  if  defendant  in  the  suit  at  law  was  not 
sui  juris,  as  in  the  case  of  a  feme  povert,  the  judgment  may 
be  restrained.^^  And  a  judgment  by  default  against  a  feme 
covert  being  a  nullity,  its  enforcement  against  her  separate 
estate  will  be  enjoined.^®  So  the  execution  of  a  judgment 
rendered  against  a  feme  covert  by  confession  upon  a  judgment 
note  which,  by  reason  of  her  disability,  she  had  no  power  to 
execute,  will  be  restrained.^'^  And  the  same  strictness  of  proof 
is  not  required  to  establish  an  excuse  for  not  making  the 
defense  at  law  as  would  be  requisite  to  establish  the  defense 
itself  upon  trial.^^ 

•"•2  Galbraith  v.  Martin,  5  Humph.,  ss  Griffith  r.  Clarke,  18  Md.,  457. 
50.  06  Id. 

C3  Rice  V.  Rail  Road  Bank,  7  ■■'  Hoffman  r.  Shupp,  80  Md., 
Humph.,  39.  611,  31  Atl.,  505. 

^•*  Rice    V.    Rail    Road    Bank,    7         ''S  Rice  r.    Rail    Road    Bank,     7 

Humph.,   39.      See    also  Horn    v.     Humph.,  39. 
Queen.  4  Neb.,  108. 


CHAP.  111. J  AGAINST   J  L DGMENTS.  189 


III.     Judgments  Obtained  TirRorGir  Fraud. 

§  190.  Fi^udulent  judgment   may  be  enjoined. 

190a.  Definition  of  fraud. 

191.  The  rule  illustrated. 

192.  Fraudulent    alteration    of   judgment    record. 

193.  Cases  where   fraud  could  not  be  urged  at  law. 

194.  Person  aggrieved  must  show  due  diligence. 

195.  Fraud  construed;   magistrate  not  necessary  party. 

196.  Judgment  in  violation  of  agreement  enjoined. 

197.  Forged  assignment   of  bond. 

198.  Statutory  judgment;    collusion;    prior  judgment  discharged. 

199.  Fraudulent   representations   by   plaintiff   ground    for   enjoining 

judgment. 

200.  The   rule   illustrated. 

201.  Cases  where  relief  refused;  special  agreements;  surety. 

202.  Fraudulent   representations  by  plaintiff's  attorney  ground   tor 

enjoining  judgment;    must  allege  attorney's  authority. 

203.  Fraud  may  consist  in  mere  silence,  or  suppressio  veri. 

204.  Satisfactory  proof  of  fraud  required. , 

205.  Plaintiff  must  come  into  court  with  clean  hands. 

206.  False  representations  by  vendor  of  patented  medicines. 

207.  Effect  of  final  Injunction. 

208.  Enforcement   of   vacated   judgment  enjoined. 
208a.  Injunction  against  judgment  for  alimony. 

§  190.  Fraudulent  judgment  may  be  enjoined.  The  most 
frequent  exceptions  to  the  rule  that  an  injunction  will  not 
be  allowed  against  proceedings  under  a  judgment  where  the 
defense  should  have  been  made  at  law,  are  cases  where  the 
judgment  was  obtained  through  such  fraudulent  conduct  or 
such  deceitful  representations  as  prevented  the  defendant 
from  asserting  his  rights  in  the  legal  tribunal.  Indeed,  the 
exceptions  thus  recognized  are  sufficient  to  constitute  a  rule 
of  themselves,  and  it  may  be  said,  generally,  that  where 
through  fraud  upon  the  part  of  plaintiff  or  his  representatives, 
defendant  is  prevented  from  making  his  defense  at  law,  equity 
will   relieve   against   the   judgment.^      The   rule,   however,   as 

1  Carrington  v.  Holabird,  17  Conn.,  544;  Wierich  r.  De  Zoya, 
Conn.,    530;     Pearce    v.    Olney,    20     2    Gilm.,    385;      Burpee     v.    Smith, 


190  INJUNCTIONS.  [chap.  III. 

thus  stated,  is  to  be  taken  with  the  qualification  that  the  relief 
will  not  be  granted  because  of  fraud  alone,  but  only  where 
the  person  aggrieved  shows  a  good  reason  why  the  defense 
was  not  made  at  law,-  and  when  he  shows  a  meritorious  de- 
fense to  the  action  which  he  seeks  to  enjoin.^  This  being 
shown,  and  it  appearing  that  defendant  was  prevented  from 
the  assertion  of  his  rights  by  fraud,  unmixed  with  negligence 
of  his  own,  a  court  of  equity  will  afford  relief,  either  by  open- 
ing the  case  and  allowing  another  trial,  or  by  awarding  a  per- 
petual injunction.'*  And  since  a  judgment  is  a  mere  chose 
in  action,  and  a  purchaser  or  assignee  takes  it  subject  to  all 
equities  existing  between  the  original  parties,  its  enforcement 
may  be  enjoined,  if  obtained  through  fraud,  although  it  has 
been  assigned  to  a  third  person  ignorant  of  such  fraud.^ 

§  190  a.     Definition  of  fraud.     It  is  important  to  bear  in 

mind  that  the  fraud  for  which  equity  will  relieve  against  the 

enforcement  of  judgments  is  that  practiced  in  the  procurement 

of  the  judgment  and  not  that  which  taints  or  vitiates  the  cause 

of  action  upon  which  the  judgment  was  founded.    In  the  latter 

case,  the  fraud  constitutes  a  valid  defense  to  the  action  in 

which  the  judgment  was  rendered  and  relief  will  accordingly 

be  denied  since  there  is  a  complete  and  adequate  remedy  at 

law.® 

Walk.    (Mich.),  327;    Kent  v.  Ric-  court  an  instrument  of  injustice  in 

ards,    3    Md.    Ch.,    392;     Green     v.  all  cases  where  such  advantage  has 

Haskell,    5    R.    I.,    447;    Hentig   v.  been  gained  by  fraud,  accident  or 

Sweet,    27     Kan.,     172;     Kelly     v.  mistake  of  the  opposite  party." 

Wiard,    49    Conn.,    443;    Taylor   v.        2  Lacey  i;.  Administrators,  1  Ohio, 

Nashville   &   C.   R.   Co.,  86   Tenn.,  256. 

228,  6  S.  W.,  393;  Kelleyr.  Kriess,         3  Overton  v.  Blum,  50  Tex.,  417. 

68  Cal.,  210,  9  Pac,  129.     And  in  And  see,  ante,  §  126. 

Pearce  v.  Olney,  20  Conn.,  544,  the         ■*  Wierich   v.   De   Zoya,    2    Gilm., 

court  say:      "Indeed   this   falls   di-  385. 

rectly  within  and  is  but  an  illus-        ■■  Taylor  v.  Nashville  &  C.  R.  Co., 

tration   of   the   general    rule    that  86  Tenn.,  228,  6  S.  W.,  393. 

equity  will  interfere  to  restrain  the        c  payne  v.  O'Shea,  84  Mo.,  129; 

use  of  an  advantage  gained   in  a  Murphy  w.  De  France,  101  Mo.,  151, 

court      of      ordinary    jurisdiction,  13   S.  W.,  756. 

which  must  necessarily  make  that 


CHAP,  in.]  AGAINST   JUDGMENTS.  191 

§  191.  The  rule  illustrated.  Even  though  a  judgment  has 
been  entered  by  consent  of  the  parties  and  as  the  result  of 
a  compromise  between  them,  it  may  still  be  enjoined  upon 
grounds  of  fraud,  accident,  or  mistake.'''  And  where  defendant 
had  a  good  and  meritorious  defense  upon  the  merits,  but  was 
prevented  from  asserting  it  by  receiving  assurances  in  writing 
from  plaintiff's  attorney  that  nothing  further  would  be  done 
in  the  suit  until  he  was  notified,  the  injunction  was  allowed.^ 
So  where  defendant,  through  fraud  and  improper  management 
of  the  adverse  party  and  with  no  fault  of  his  own,  was  pre- 
vented from  pleading  a  discharge  in  bankruptcy  against  the 
action  at  law,  the  relief  was  granted.'^  And  where,  relying 
upon  the  written  statements  of  a  justice,  before  whom  the 
suits  were  brought,  that  they  would  be  dismissed,  no  defense 
was  interposed,  and  the  justice  afterward  rendered  judgments 
without  notice  to  defendants,  an  injunction  was  allowed,  it 
being  shown  that  no  cause  of  action  existed  in  favor  of  plain- 
tiff in  the  judgments.^ ^  Nor  is  the  power  of  a  court  of  chan- 
cery to  grant  the  relief  taken  away  by  a  statute  conferring  ^ 
upon  the  court  of  law  in  which  the  judgment  was  obtained 
authority  to  grant  a  new  trial  in  such  a  case.^i  And  when 
a  claim  against  an  estate  is  allowed  upon  false  representa- 
tions to  the  court  and  without  notice  to  the  administrator,  who 
does  not  learn  of  its  allowance  until  after  the  time  for  an 
appeal  has  expired,  he  is  entitled  to  relief  by  injunction.^^    go 

7  Hahn  v.  Hart,  12  B.  Mon.,  426.  charge  was  granted,  the  court  hold- 

8  Pearce  v.  Olney,  20  Conn.,  544.  ing  that  while  the  legal  liability  of 

9  Carrington  v.  Holabird,  17  the  insolvent  to  pay  his  debts  had 
Conn.,  530;  Starr  v.  Heckart,  32  ceased,  the  moral  obligation  re- 
Md.,  267.  But  see,  contra,  Katz  mained  as  strong  as  before  and 
r.  Moore,  13  Md.,  566,  where  it  is  was  sufficient  to  sustain  the  judg- 
held  that  a  judgment  at  law  will  ment. 

not  be  enjoined  because  of  the  dis-  lo  Wagner  v.  Shank,  59  Md.,  313. 

charge    of     the     judgment    debtor  n  Carrington     v.     Holabird,     17 

under  the  insolvent  laws  of  a  state  Conn.,  530. 

previous  to  the  rendering  of  such  12  Dundas   v.  Chrisman,  25  Neb., 

judgment,   even   though    the   cause  495,  41  N.  W.,  449. 

of  action    accrued   before    the   dis- 


192  INJUNCTIONS.  [chap.  III. 

where  the  plaintiff  has  procured  a  judgment  by  means  of  the 
introduction  in  evidence  of  a  forged  document,  of  which  com- 
plainant had  no  knowledge  at  the  time  of  the  trial,  relief 
against  the  judgment  will  be  granted.^ -"^ 

§  192.  Fraudulent  alteration  of  judgment  record.  The  fact 
that  after  judgment  and  execution  the  records  of  the  court 
were  fraudulently  altered  and  the  amount  of  the  judgment 
increased,  without  the  knowledge  or  consent  of  the  judgment 
debtor,  is  sufficient  to  warrant  a  court  of  equity  in  restraining 
the  enforcement  of  the  judgment.  And  in  such  case,  although 
the  execution  might  be  staid  by  motion  in  the  court  rendering 
the  judgment,  yet  since  the  relief  sought  goes  to  the  judg- 
ment itself,  equity  may  properly  entertain  jurisdiction.^^  So 
a  judgment  has  been  enjoined  because  of  fraud  in  obtaining 
a  bill  of  sale  upon  which  the  action  was  founded.^ •'^ 

§  193.  Cases  where  fraud  could  not  be  urged  at  law.  It  not 
infrequently  happens  from  the  peculiar  nature  and  circum- 
stances of  the  case  that  the  fraud  on  which  a  judgment  is 
predicated  can  not  be  set  up  or  urged  in  a  legal  tribunal.  In 
such  cases  a  court  of  chancery  will  afford  relief  by  enjoining 
proceedings  under  the  judgment.^"  Thus,  where  a  bond  on 
which  judgment  was  obtained  was  procured  by  fraudulent  and 
oppressive  conduct,  and  it  is  by  no  means  clear  that  a  court  of 
law  could  give  the  relief  asked  for,  the  judgment  may  be 
enjoined  in  ecpiity.^"  So  an  injunction  has  been  granted 
against  a  judgment  on  a  note  given  for  the  purchase  price  of 
a  horse,  on  the  ground  of  deceitful  and  fraudulent  representa- 
tions as  to  his  soundness,  it  appearing  that  ho  was  unsound.^^ 
j\nd  a  judgment  for  the  purchase  money  of  personal  property 
may  be   enjoined  on  the  ground  that,  contrary  to  the  repre- 

••■' Marshall  v.  Holmes,  141   U.  S.,  "i  Collier  v.  Easton,  2    Mo.,    117 

589,  12  Sup.  Ct.  Rep.,- 62.  (2(1  ed.) ;  West  v.  Wayne,  3  Mo.,  13 

n  Babcock   r.  McCamant,  53  111.,  (2d  ed.). 

214;    Hardy   r.   Broaddus,   35   Tex.,  '^West  r.  Wayne,  3  Mo.,  13   (2d 

668.  ed.). 

in  Crawford    r.    Crawford,    4    De-  "<  Waters  r.   Mattingly,    1     Bibb, 

saus  Rf|.,  176.  244.     From  the  case  as  reported  it 


CHAP.  III.]  AGAINST   JUDGMENTS.  '  193 

sentations  of  the  vendor,  the  property  was  incumbered  witk 
liens  to  an  amount  beyond  its  value. ^'* 

§  194.  Person  aggrieved  must  show  due  diligence.  He  who 
seeks  the  aid  of  equity  to  prevent  the  enforcement  of  a  judg- 
ment upon  the  ground  of  fraud  must  show  due  diligence  in. 
the  assertion  of  his  rights.  And  where  defendant  has  allowed 
a  suit  to  proceed  to  judgment  without  any  attempt  on  his 
part  to  obtain  proof,  an  injunction  will  not  be  allowed  on  the 
ground  of  fraud  in  the  original  transactions  on  which  the  suit 
was  founded.-*^  So  where  the  fraud  relied  upon  might  have 
been  used  as  a  defense  to  the  action  at  law,  but  it  does  not 
appear  whether  it  was  so  used,  or  whether  defendant  neg- 
lected to  avail  himself  of  it,  the  judgment  will  not  be  re- 
strained.^i 

§  195.  Fraud  construed ;  magistrate  not  necessary  party. 
Where  the  equitable  jurisdiction  of  the  court  is  conferred 
entirely  by  statute  and  is  limited  to  cases  of  fraud,  accident, 
mistake  or  account,  fraud  is  construed  to  mean  actual  fraud  in 
its  strictest  sense ;  and  this  not  appearing  in  the  bill  the  injunc- 
tion will  be  refused.--  And  it  is  to  be  observed  that  the  juris- 
diction of  equity  in  restraining  proceedings  under  a  judg- 
ment is  not  exercised  by  assuming  control  over  the  court  in 
which  the  proceedings  were  had,  but  by  controlling  the  parties 
to  the  action.  Hence  a  magistrate  before  whom  a  judgment 
was  rendered  should  not  be  made  a  party  to  the  injunction 
suit.2S 

does  not  appear  that  any  defense  -'i  Parker  v.   Morton,    5    Blackf. 

was  attempted  in  the  suit  on  the  1;  Norwegian  Plow  Co.  v.  Bollman, 

note,   but   that   it   was   first    inter-  47  Neb.,  186,  66  N.  W.,  292,  31  L. 

posed  in  the  bill  for  the  injunction.  R.  a.,  747. 

19  Poe  V.  Decker,  5  Ind.,  150.  But  21!  Gilder  r.  Merwin,  6  Whart. 
it  does  not  appear  from  the  report  522;  Riley  r.  Ellmaker,  6  Whart., 
whether    the    defendant     was     ap-  545. 

prised  of  the  facts  in  time  to  de-  I'-i  Burpee  v.  Smith,  Walk, 
fend  at  law.  (Mich.),   327. 

20  March  v.  Edgerton,  1  Chand., 
198. 

13 


194  INJUNCTIONS.  [chap.  III. 

§  196.     Judgment  in  violation  of  agreement  enjoined.     In 

further  illustration  of  the  principles  already  discussed  it  is 
held  that  a  judgment  obtained  in  violation  of  an  express  agree- 
ment and  an  entry  on  the  docket  of  the  court  may  be  enjoined, 
even  though  the  judgment  creditor  does  not  threaten  its  en- 
forcement; since  his  refusal  to  release  the  judgment  is  equiva- 
lent to  a  threat  of  its  enforcement  and  the  injunction  is  neces- 
sary for  the  protection  of  the  judgment  debtor.-^  So  where 
an  action  before  a  justice  of  the  peace  has  been  continued  by 
stipulation  to  be  taken  up  by  the  consent  of  the  parties,  a 
judgment  rendered  by  default  contrary  to  this  agreement 
will  be  enjoined,  complainant  showing  a  good  defense  to  the 
action  and  being  guilty  of  no  fault  or  negligence  of  his  own.^^ 
And  where  a  judgment  has  been  rendered  by  default  under 
a  general  order  of  the  court  contrary  to  an  agreement  between 
the  parties  that  the  defendant  might  enter  his  appearance  at 
any  time  and  that  no  action  would  be  taken  against  him 
because  of  his  delay  in  this  regard,  the  enforcement  of  the 
judgment  will  be  restrained.-^  And  the  relief  is  not  limited 
to  cases  where  the  judgment  has  thus  been  procured  contrary 
to  the  agreement  of  the  parties  but  it  is  extended  to  cases 
M^here  it  is  being  enforced  contrary  to  the  plaintiff's  under- 
taking. Thus,  where,  in  direct  violation  of  a  stipulation  be- 
tween the  parties,  the  judgment  creditor  has  failed  to  credit 
his  debtor  with  a  payment  upon  the  judgment,  and  is  pro- 
ceeding to  collect  the  whole,  an  injunction  will  be  granted.^''' 
So  where  it  has  been  agreed  that  the  judgment  should  be 
released  in  full  upon  payment  of  one-half  of  its  face,  its  enforce- 
ment in  violation  of  this  stipulation  will  be  restrained.^^  But 
the  execution  of  a  judgment  entered  in  violation  of  the  agree- 

24  Chambers  v.  Robbins,  28  Conn.,  443,  65  N.  E.,  843,  94  Am.  St.  Rep., 
552.  662. 

25  Gulf,  C.  &  S.  F.  R.  Co.  V.  King,  2-  Newman   v.   Meek,    Sm.    &   M. 
80  Tex.,  681,  16  S.  W.,  641.  Ch.,  331. 

2«i  Brooks  V.  Twitchell,  182  Mass.,         -"*  Johnson   v.    Huber,    106     Wis., 

28?,  82  N.  W.,  137. 


CHAP.  III.]  AGAINST   JUDGMENTS.  195 

ment  of  the  parties  will  not  be  enjoined  where  the  defendant 
had  an  adequate  remedy  by  motion  to  set  it  aside,  of  which 
he  has  failed  to  avail  himself.^^ 

§  197.  Forged  assignment  of  bond.  So  equity  may  relieve 
against  a  judgment  recovered  against  the  obligor  in  a  bond 
by  one  claiming  under  a  forged  assignment,  even  though  the 
obligor  had  notice  of  the  fact;  since  the  action  being  brought 
in  the  name  of  the  obligee  to  the  use  of  the  pretended  assignee, 
the  obligor  is  precluded  from  any  inquiry  into  the  genuineness 
of  the  assignment  in  the  trial  at  law,  and  payment  under  such 
circumstances  would  not  protect  him  against  the  claim  of  the 
rightful  owner  of  the  bond.^^ 

§198.  Statutory  judgment;  collusion;  prior  judgment  dis- 
charged. Equity,  being  competent  to  relieve  against  an  ordi- 
nary judgment  in  a  court  of  law,  may  also  relieve  against  an 
execution  issued  under  a  statutory  judgment  springing  into 
being  upon  the  forfeiture  of  a  forthcoming  bond,  where  fraud 
has  been  used  in  obtaining  the  forfeiture  of  the  bond.^^  So 
an  injunction  will  be  allowed  against  a  sale  upon  execution 
under  a  judgment  obtained  by  collusion,  where  the  property 
levied  upon  was  purchased  with  complainant's  funds,  the 
judgment  having  been  obtained  and  the  levy  procured  for 
the  purpose  of  defeating  complainant's  claim  to  the  prop- 
erty.22  ^^^j  where  a  judgment  has  been  obtained  by  default 
upon  a  prior  judgment,  of  which  the  judgment  creditor  has 
given  a  discharge  which  would  have  been  effectual  if  pleaded 
at  law,  its  execution  may  be  restrained.^^ 

§  199.  Fraudulent  representations  by  plaintiff  ground  for 
enjoining  judgment.    Fraudulent  conduct  and  deceitful  repre- 

29  Kitzman  v.  Minn.  T.  Mfg.  Co.,  and  it  does  not  appear  whether  de- 
10  N.  Dak.,  26,  84  N.  W.,  585.  defendant  had  any  opportunity  of 

30  Griffith  V.  Reynolds,  4  Grat.,  pleading  the  discharge  at  law,  ex- 
46.  cept  in  the  statement  of  the  court 

31  Nunn  V.  Matlock,  17  Ark.,  512.  that    the    judgment    was    obtained 

32  Greene  v.  Haskell,  5  R.  I.,  447.  without     right    and     without    the 

33  Devoll  V.  Scales,  49  Maine,  320.  knowledge  of  defendant. 
The  case   is   imperfectly  reported. 


196  INJUNCTIONS,  [chap.  III. 

sentations  upon  the  part  of  plaintiff  in  an  action  at  law,  by 
means  of  which  defendant,  having  a  meritorious  defense,  is 
prevented    from    interposing    it,    afford   frequent    ground    for 
application  for  the  aid  of  an  injunction  to  restrain  the  enforce- 
ment of  judgments  thus  fraudulently  obtained.     The  general 
rule  upon  this  subject  is  well  defined  and  clearly  established, 
both  upon  principle  and  authority.     And  whenever,  by  rea- 
son   of   plaintiff's   fraudulent   conduct   or   representations   to 
defendant  concerning  the   nature   and   objects  of  the   action, 
or  the  purpose  of   the    judgment,  or    the    prosecution  of  the 
cause,  defendant  in  the  action,  having  a  good  defense  upon 
the  merits,  is  lulled  into  security    so    that    he    fails  to  inter- 
pose his  defense,  he  is  entitled  to  the  aid  of  equity  to  pre- 
vent the  plaintiff  from   reaping  the  benefits   of  a  judgment 
thus   fraudulently    obtained.^^      Thus,    where    judgment  has 
been  taken  against  a  defendant  by  default,   after  an  agree- 
ment   between    the    parties    to    submit    the    controversy    to 
arbitration,  the  judgment  may  be  enjoined  upon  a  bill  show- 
ing a  good  and    valid    defense    to    the    action.     The  relief  is 
allowed  in  such  case  upon  the  ground  that  when  by  mistake 
or  fraud  one  has  gained  an  unfair  advantage  in  proceedings 
at  law,  which  will  operate  to  make  the  court  of  law  an  in- 
strument  of  injustice,   equity   will   interfere   to   prevent  him 
from   reaping  the   benefit  of  the  advantage  thus  improperly 
gained.-^-'"'     So  where  defendant  has  a  good  defense  to  a  part 
■of  the  cause  of  action,  but  is  misled  by  an  agreement  with 
plaintiff's  not   to   make   such  defense,   it  is   proper  to   enjoin 
the   collection    of  the   judgment    until    it   can   be   determined 

^*  Webster  r.  Skipwith,  26  Miss..  Delaney  r.   Brown,  72   Vt.,  344,  47 

341;  Poindexter  r.  Waddy,  6  Munf..  At.1.,   1067.       See  also  Hemphill  v. 

418;   Baker  v.  Redd,  44  Iowa,  179;  Ruckersville    Bank,     3     Ga.,     435; 

Bigham    r.    Gorham.    52   Ga.,    329;  Pearce    r.    Olney,    20     Conn.,     544; 

Bresnehan  v.   Price,    57  Mo.,    422;  Kelley    r.    Kriess.    68    Cal.,    210,    9 

Hinckley    v.   Miles,    15     Hun.    170:  Pac.  129. 
Markham  v.  Needham,  57  Ga.,  43;  •■■  Bresnehan  r.  Price,  57  Mo..  422. 


CHAP.  in. J  AGAINST   JUDG.MEMTS.  197 

upon  final  hearing  whether  he  is  entitled  to  be  heard  upon 
his  defense.'^*"' 

§  200.  The  rule  illustrated.  Illustrations  of  the  rule  as 
above  stated  are  numerous,  but  the  same  general  principle  of 
preventing  one  who  *5ias  gained  a  legal  advantage  by  fraud 
from  availing  himself  of  its  benefits  will  be  found  to  underlie 
them  all.  Thus,  where  plaintiff  in  the  action  induces  defend- 
ants to  withdraw  their  defense  and  to  permit  judgment  to  go 
against  them,  upon  his  assurance  and  undertaking  that  he 
will  stay  proceedings  after  judgment  until  a  given  time,  and 
will  then  carry  out  a  settlement  agreed  upon  between  the 
parties  upon  the  basis  of  the  plea  or  defense  which  is  with- 
drawn, and  plaintiff  afterwards  attempts  to  enforce  the 
judgment  in  violation  of  his  agreement,  a  proper  case  is  pre- 
sented for  relief  by  injunction.^''^  So  where  the  maker  of  a 
promissory  note  has  paid  it  in  full,  and  holds  a  receipt  to 
that  effect  from  the  indorsee,  but  consents  to  judgment 
against  him  in  favor  of  the  latter,  upon  his  representations 
that  he  will  not  enforce  the  judgment  against  the  maker, 
and  that  he  only  desires  to  enforce  it  against  the  indorser, 
the  maker  of  the  note  may  enjoin  the  collection  of  the 
judgment  upon  the  ground  of  fraud.^^  And  when  defendant 
in  a  suit  upon  a  promissory  note  might  have  successfully 
pleaded  non  est  factum  to  the  action,  but  was  prevented  from 
so  doing  by  the  representations  of  plaintiff,  an  injunction 
may  be  allowed  to  restrain  the  enforcement  of  the  judg- 
ment.^'' So  when  the  bill  alleges  that  the  note  upon  which 
judgment  was  rendered  had  been  settled  by  agreement  with 
plaintiff  in  the  action,  and  that  the  suit  was  to  be  considered 
at  an  end,  but  that  plaintiff  went  on  without  the  knowledge 

■'•'•  Dunnahoo   v.   Holland,  51   Ga..         '^  Baker   v.  Redd,   44   Iowa,   179. 
147.  ■!!»  Poindexter  v.  Waddy,  6  Munf., 

•'"  Markham  v.  Needhara,  57  Ga.,     418. 
43.       See  also   Hemphill    i:.   Ruck- 
ersville  Bank,   3   Ga.,   435. 


198  INJUNCTIONS.  [chap.  III. 

or  consent  of  defendant  in  the  action  and  took  judgment 
against  him,  and  these  allegations  are  not  specifically  or  fully 
denied  upon  the  motion  for  the  injunction,  it  is  not  error  to 
grant  an  injunction  until  the  final  hearing.-**^  And  a  judg- 
ment which  is  obtained  by  fraudulent  representations  upon 
the  part  of  plaintifi:  to  defendant,  both  as  to  the  purpose  of  the 
action  and  the  amount  sought  to  be  recovered,  may  properly 
be  enjoined.^i  And  it  is  to  be  observed  that  the  application 
of  the  rule  is  the  same  whether  the  fraudulent  conduct  or 
deceitful  representation  of  the  plaintiff  were  used  by  him  to 
obtain  the  judgment  in  the  first  instance  or  for  the  purpose 
of  retaining  the  benefits  of  the  judgment  after  its  rendition 
by  fraudulently  depriving  the  defendant  of  his  day  in  court 
in  which  to  have  the  judgment  vacated  or  to  obtain  a  new 
trial.-i2 

§201,  Cases  where  relief  refused;  special  agreements; 
surety.  Where,  however,  by  agreement  between  the  parties 
to  a  cause  it  is  stipulated  that  the  judgment  shall  be  paid  in 
a  given  way  and  within  a  given  time,  and  before  the  expiration 
of  the  time  specified  plaintiff  issues  execution  upon  the  judg- 
ment, the  judgment  debtor  can  not  enjoin  proceedings  under 
the  execution  until  he  has  first  offered  to  pay  the  judgment 
in  accordance  with  the  terms  of  the  agreement.'*^  And  an 
agreement  made  between  the  judgment  creditor  and  his 
debtor,  without  consideration,  that  if  the  debtor  will  pay 
one-half  the  debt  when  due,  the  creditor  will  make  the  other 
half  out  of  the  property  of  a  co-debtor,  and  will  not  look  to 
the  judgment  debtor,  is  not  such  an  estoppel  against  the 
creditor  as  to  warrant  an  injunction  to  prevent  him  from 
enforcing  a  judgment  for  the  full  amount.^^  Nor  will  an 
injunction    lie    to    restrain    a   judgment   against   complainant 

■io  Bigham  v.  Gorham,  .52  Ga.,  329.  *^  Town   of   Anamosa    r.     Wurz- 

41  Hinckley  v.  Miles,  15  Hun,  170.  bacher,  37  Iowa,  25. 

42  Delaney  v.  grown,  72  Vt.,  344,  ^  Smith  v.  Tyler,  51  Ind.,  512. 
4?  Atl..  1067;  Thompson  v.  Laugh- 

lln,  91  Cal.,  313,  27  Pac,  752. 


CHAP.  III.]  AGAINST   JUDGMENTS.  199 

upon  a  note  executed  by  him  as  surety,  the  only  equity  in 
support  of  the  bill  being  that  fraudulent  representations  were 
made  by  the  principal  to  obtain  the  signature  of  the  surety, 
no  fraud  or  misrepresentation  being  charged  upon  the  payee.*^ 

§  202.  Fraudulent  representations  by  plaintiff's  attorney 
ground  for  enjoining  judgment;  must  allege  attorney's 
authority.  It  is  also  to  be  noticed  that  the  cases  in  which 
the  relief  is  granted  upon  the  ground  of  fraud  are  not  lim- 
ited to  those  where  the  fraudulent  representations  are  those 
of  plaintiff  in  person,  but  that  the  fraudulent  conduct  of 
plaintiff's  attorney  in  the  cause  may  afford  sufficient  ground 
for  enjoining  a  judgment  which  is  obtained  by  means  of 
such  fraud.**^  And  where  plaintiff's  attorney  has  taken  judg- 
ment in  violation  of  his  express  agreement  with  defendant, 
the  agreement  being  within  the  scope  of  the  attorney's 
authority,  the  enforcement  of  the  judgment  may  be  re- 
strained because  of  such  fraud  on  the  part  of  the  attorney.'*'^ 
So  when  defendant  in  the  judgment  shows  a  good  equitable 
defense  thereto,  which  he  was  prevented  from  making  by 
relying  upon  the  representations  of  the  solicitor  for  plain- 
tiff in  the  action,  proceedings  under  the  judgment  may  prop- 
erly be  enjoined.^^  So  where  defendant,  on  being  served 
with  process,  applied  to  his  regular  attorney  to  defend  the 
cause,  and  stated  to  him  his  grounds  of  defense,  and  was 
informed  by  him  that  he  appeared  as  attorney  for  plaintiff, 
but  that  he  was  satisfied  with  the  justice  of  his  defense, 
and  would  take  no  judgment  against  him,  and  defendant, 
relying  upon  such  assurances,  made  no  defense  to  the  action 
and  was  not  aware  of  the  judgment  until  after  it  was  ren- 

45  Griffith  V.  Reynolds,  4  Grat.,  Thompson  v.  Laughlin,  91  Cal.,  313, 
46.  27    Pac,   752. 

46  Kent  V.  Ricards,  3  Md.  Ch.,  ^i  Kent  v.  Ricards,  3  Md.  Ch., 
392;  Holland  v.  Trotter,  22  Grat.,  392;  Hentig  v.  Sweet,  27  Kan.,  172. 
136;  O'Neill  r.  Browne,  9  Ir.  Bq.,  48  O'Neill  v.  Browne,  9  Ir.  Eq., 
131;  Hentig  r.  Sweet,  27  Kan.,  172;  131. 


200  INJl  XCTIO.VS.  [CIIAP.  III. 

dered,  the  judgment  was  enjoined."*^  But  to  warrant  relief 
in  all  such  cases,  where  a  judgment  has  been  taken  contrary 
to  an  agreement  made  by  the  plaintiff's  attorney,  it  is  incunj- 
bent  upon  the  complainant  to  make  affirmative  allegations  that 
the  attorney  had  authority  to  bind  the  plaintiff  by  such  agree- 
ment ;  and  in  the  absence  of  positive  allegations  to  this  effect, 
the  bill  is  fatally  defective  and  the  relief  will  be  denied.'^*' 

§  203.  Fraud  may  consist  in  mere  silence,  or  suppressio 
veri.  It  is  important,  also,  to  be  borne  in  mind  in  considering 
the  nature  and  grounds  of  equitable  relief  against  fraudu- 
lent judgments,  that  the  fraud  which  is  made  the  foundation 
for  the  relief  is  not  necessarily  of  an  active  or  affirmative 
nature,  but  may  consist  in  mere  silence  or  suppression  where 
good  faith  and  fair  dealing  would  require  a  disclosure  of 
facts  which  are  concealed.  For  example,  when,  in  proceed- 
ings to  determine  the  title  to  real  estate,  a  mistake  in  the 
description  of  the  premises  results  in  depriving  defendant 
of  property  without  an  opportunity  of  maintaining  his  title, 
and  he  does  not  discover  the  mistake  until  too  late  to  revievv^ 
the  proceedings  at  law,  but  plaintiff'  being  aware  of  the  mis- 
take remains  silent  until  the  time  for  reviewing  the  proceed- 
ings has  expired,  and  then  brings  an  action  of  tort  against 
defendant  for  trespassing  upon  the  lands  thus  recovered, 
sufficient  fraud  is  shown  to  warrant  an  injunction  to  restrain 
plaintiff  in  the  former  action  from  setting  up  the  judgment 
therein  as  an  estoppel. ^^ 

§  20-t.  Satisfactory  proof  of  fraud  required.  In  the  class  of 
cases  under  consideration  satisfactory  proof  is  required  of 
th(^  fraud  upon  which  the  judgment  is  sought  to  be  enjoined. 
And  an  injunction,  if  already  granted,  will  not  be  sustained 
because  of  fraud  on  th(>  part  of  the  judgment  creditor  when  the 
allegations  of  fi-aiid   arc   fully  negatived   by   answer  and   are 

■•!'  Holland  v.  Trotter,  22  Grat,  ''i'  Anderson  v.  Oldham,  82  Tex., 
136.  228,   18   S.   W.,   557. 

r-i  Currier  c.  Esty,  110    Mass.,  536. 


ClIAl'.  lir.|  AGAINST    .rrDG.MFA'I'S.  201 

not  established  by  proof,  and  when  it  does  not  appear  that 
defendant  in  the  action  at  law  was  defeated  by  accident  or 
surprise. •''- 

§  205.  Plaintiff  must  come  into  court  with  clean  hands.  It 
is  also  to  be  borne  in  mind  that  he  who  would  have  equitable 
relief  against  a  judgment  upon  the  ground  of  fraud,  must 
himself  come  into  the  court  with  clean  hands,  since  courts  of 
e<[uity  will  not  interpose  their  extraordinary  relief  by  injunc- 
tion in  favor  of  one  who  has  himself  participated  in  the  fraudu- 
lent action  which  is  made  the  basis  of  relief.'"'^  Where,  there- 
fore, a  debtor  in  failing  circumstances  executes  a  bond  with 
a  warrant  of  attorney  to  confess  judgment,  for  the  purpose 
of  hindering  and  defrauding  his  creditors,  he  will  not  after- 
ward be  allowed  an  injunction  to  restrain  proceedings  under 
the  judgment. ^"^  So  where  one  without  consideration  confesses 
judgment  for  the  purpose  of  withdrawing  his  property  from 
the  demands  of  creditors  of  an  incorporated  eompan}^  in  which 
he  is  a  shareholder,  he  will  not  be  allowed  to  enjoin  the  enforce- 
ment of  the  judgment  thus  fraudulently  confessed.'^-'' 

§  206,  False  representations  by  vendor  of  patented  medi- 
cines. Where  the  right  to  manufacture  a  particular  medicine, 
composed  of  certain  ingredients  in  certain  specified  propor- 
tions, and  to  procure  letters  patent  thereon,  was  conveyed  to 
a  purchaser,  an  interlocutory  injunction  was  granted  until  the 
hearing  to  restrain  the  enforcement  of  judgments  for  the  pur- 
chase; money,  upon  a  bill  alleging  false  representations  by  the 
vendor  as  to  the  active  agent  or  ingredient  of  the  medicine, 
such  representations  being  the  inducement  to  make  the  pur- 
chase.•'5''' 

■'■-  Briesch    v.   McCauley,    7    Gill,  '■*  Bateman    r.    Ramsay,    Sau.    & 

189.  Sc,  459. 

■"'•■i  Bateman    r.    Ramsay,    Sau.    &  •"■•'' McCurdy  r.  Martin,  5   Ir.  Eq., 

Sc,  459;   McCurdy  r.  Martin,  5  Ir.  515.     And  see  Taylor  (;.  Campbell, 

Eq.,  515.    And  see  Taylor  r.  Camp-  10  Ir.  Eq.,  249. 

bell,  10  Ir.  Eq..  249.  ■'<■  Flippin  r.  Knaffle,  2  Tenn.  Ch., 

238. 


202  INJUNCTIONS.  [chap.  III. 

§  207.  Ejffect  of  final  injunction.  When  an  injunction  is 
made  perpetual  against  the  enforcement  of  an  execution 
under  a  judgment  at  law  because  of  fraud  in  procuring  the 
judgment,  the  effect  of  such  final  injunction  is  only  to  pre- 
vent the  use  of  the  process  of  the  court,  without  annulling  the 
process  itself.  In  other  words,  the  injunction  in  such  case 
does  not  operate  upon  the  process  of  the  court  itself,  but  only 
enjoins  defendant  from  using  that  process.^'^ 

§  208.  Enforcement  of  vacated  judgment  enjoined.  The 
enforcement  of  an  execution  upon  a  judgment  for  the  recovery 
of  lands,  which  has  been  vacated  and  set  aside,  may  be 
properly  enjoined,  especially  when  the  plaintiff  in  such  vaca- 
ted judgment  has  long  acquiesced  therein  without  complaint.^^ 

§  208  a.  Injunction  against  judgment  for  alimony.  Where 
a  wife  obtains  a  judgment  for  alimony  in  a  divorce  proceed- 
ing against  her  husband,  the  enforcement  of  such  judgment 
will  be  enjoined  in  a  subsequent  suit  for  absolute  divorce  insti- 
tuted by  the  husband  against  the  wife  upon  the  ground  that 
she  was  a  married  woman  at  the  time  of  her  marriage  to  the 
plaintiff.  In  such  case  the  court  entertains  jurisdiction  upon 
the  ground  that  it  would  be  against  conscience  to  permit  the 
enforcement  of  the  judgment.^^ 

57  Gainty  v.  Russell,  40  Conn.,  has  been  satisfied  under  a  compro- 
450.  mise  between  the  parties,  see  Wray 

58  Marsh  v.  Prosser,  64  Ind.,  293.    v.  Chandler,  64  Ind.,  146. 

As   to   the  facts   which   constitute        so  Scurlock  v.  Scurlock,  92  Tenn., 
sufficient  ground  for  enjoining  the     629,  22  S.  W.,  858. 
enforcement  of  a  judgment  which 


CHAP.  III.]  AGAINST   JUDGMENTS.  203 


IV.     Accident,  Mistake,  Ignorance  and  Surprise. 

§  209.     Foundation  of  the  jurisdiction;   loss  of  instruments;  sickness; 
ignorance  of  service  of  process. 

210.  Distinction  between  accident  and  carelessness;  illustrations. 

211.  Distinction    between   mistakes   of   fact   and   of  law. 

212.  Mistake  of  fact  ground  for  enjoining  judgment. 

213.  Mistake  of  clerk;   second  injunction  allowed  for  mistake;   mis- 

calculation of  jury. 

214.  When   judgment   too   large   injunction  allowed   only   as   to   ex- 

cess. 

215.  Mistake  of  court  ground  for  injunction;  facts  should  be  stated 

in   bill. 

216.  Mistakes  of  counsel  no   ground  for  injunction. 

217.  Laches  and  negligence  a  bar  to  relief. 

218.  Remedy  at  law  bars  relief. 

219.  Distinction  between  ignorance   of   law  and  of  fact. 

220.  Ignorance  of  fact,  when  ground  for  injunction. 

221.  Ignorance  or  misconduct  of  attorney  no  ground  for  enjoining 

judgment;    insolvency  of  attorney  immaterial. 

222.  False  return  of  service  by  sheriff;  diligence  required. 

223.  Assignee  of  note;   notice  of  equities. 

224.  Surprise  as  a  ground  for  relief;  gaming. 

209,  Foimdation  of  the  jurisdiction;  loss  of  instruments; 
sickness;  ignorance  of  service  of  process.  The  jurisdiction  of 
equity  in  restraint  of  judgments  obtained  against  persons 
who,  through  accident,  mistake,  ignorance,  or  surprise,  have 
been  prevented  from  establishing  their  defense  at  law,  results 
from  its  well  established  jurisdiction  over  these  general  sub- 
jects, and  is  governed  by  the  same  general  principles.  The 
relief  is  extended,  primarily,  for  the  prevention  of  irreparable 
mischief  which  courts  of  law  are  powerless  to  redress.  Thus, 
the  loss  at  the  time  of  trial  of  a  written  agreement  between 
the  maker  and  payee  of  a  note,  relating  to  the  contract  in 
pursuance  of  which  the  note  was  made,  and  without  which 
the  maker  could  not  establish  his  defense  at  law,  will  au- 
thorize  an  injunction   against  the  judgment.^     And  the  loss 

1  Vathir  v.  Zane,  6  Grat.,  246. 


204  INJUNCTIONS.  [CIIAP.  III. 

of  a  written  instrument  which  would  liave  operated  as  a 
defeasance  of  a  bond  has  been  deemed  sufficient  to  war- 
rant an  injunction  against  the  judgment,  even  where  the 
defense  was  not  relied  upon  at  law.-  So  equity  will  restrain 
a  judgment  on  the  ground  that  the  debt  on  which  the  action 
was  brought  had  been  paid,  defendant  having  been  pre- 
vented from  pleading  such  payment  at  law  by  accident, 
and  without  laches  on  his  part."'  So  where  judgment  was 
obtained  against  a  defendant  upon  a  promissory  note,  to  which 
his  name  had  been  forged,  and  he  was  notified  by  the  sheriff, 
who  served  him  with  process,  that  he  need  not  appear  at  the 
return  term,  and  that  the  other  makers  of  the  note  would 
appear  and  defend  for  him,  it  was  held  that  these  facts,  coupled 
with  the  sickness  of  such  defendant,  and  the  fact  that  the 
other  defendants  did  employ  counsel  who  appeared  and 
pleaded  for  the  defendants  but  afterwards  withdrew  their 
plea,  w^ere  sufficient  ground  for  enjoining  the  enforcement  of 
the  judgment  against  him.*  And  a  judgment  recovered  upon 
a  note  which  is  barred  by  the  statute  of  limitations,  w^hich  was 
properly  pleaded,  may  be  enjoined  until  the  hearing  when  the 
defendant  in  the  action  was  sick  and  his  counsel  was  absent 
at  the  hearing,  the  judgment  having  been  confessed  by  one 
not  the  attorney  of  the  defendant  in  the  action  and  without 
authority  in  the  premises.-'*  And  where  a  case,  when  reached 
for  trial,  was  continued  upon  plaintiff's  motion  and,  through 
accident  or  mistake,  an  order  was  entered  continuing  it  at 
defendant's  cost,  the  enforcement  of  such  judgment  for  costs 
is  properly  enjoined.*"'  And  where  a  foreign  corporation  was 
required,  as  a  condition  to  doing  business  in  a  state,  to  desig- 
nate fi  state  officer  as  an  attorney  to  receive  service  of  process, 
the  fjiihire  of  such  officer  to  notify  the  corporation,  as  required 

-'  Wilson    r.    T:)aviR,    1     Marshall,  '  Rowland  v.  .Tones,  2  Heisk.,  321. 

219.  ■■  Cheek  r.  Taylor,  22  Ga..  127. 

;<  Hnmphrcys  r.  Leggett,  !•  How.,  '•  Williams    r.    Pile,     104     Tenn., 

297.                                                   *  27.3.  !"i6  S.  W.,  8.33. 


CHAr.  III.]  AGAINST   JUDGMENTS.  205 

by  law,  of  the  service  of  summons  in  a  pending  action,  is 
sufficient  ground  for  enjoining  a  judgment  subsequently  ren- 
dered by  default.  In  such  case  the  negligence  of  the  state 
official  in  failing  to  notify  the  corporation  is  not  attributable 
to  the  latter,  since  it  has  no  choice  in  the  matter  as  to  his  selec- 
tionJ  But  where,  in  an  action  against  a  county,  service  is  had 
upon  the  county  clerk,  his  failure  to  notify  the  proper  county 
officials  of  the  fact  of  service  is  no  ground  for  an  injunction, 
since  the  negligence  of  the  clerk,  he  being  the  agent  of  the 
county,  is  that  of  the  county.*' 

§  210.  Distinction  between  accident  and  carelessness ;  illus- 
trations. It  is  important,  however,  to  distinguish  carefully 
between  that  degree  of  unavoidable  accident  which  will  war- 
rant relief  in  equity  against  a  judgment,  in  the  exercise  of  the 
ancient  and  well  defined  jurisdiction  of  equity  upon  the  ground 
of  accident,  and  mere  laches  or  carelessness  upon  the  part  of 
a  defendant  in  failing  to  take  proper  measures  for  his  defense 
in  the  action  at  law.  And  whenever  the  judgment  complained 
of,  and  which  it  is  sought  to  enjoin,  has  resulted  from  defend- 
ant's own  carelessness,  laches  or  omission  to  properly  prepare 
or  present  his  defense,  he  can  not  obtain  relief  by  injunction, 
such  cases  being  clearly  distinguishable  from  those  of  unavoid- 
able accident  already  considered.^  Thus,  the  absence  of  a  wit- 
ness in  behalf  of  defendant  in  an  action  at  law  affords  no 
ground  for  relief  by  injunction  against  the  judgment,  when 
no  reasonable  diligence  was  used  in  endeavoring  to  obtain  the 
attendance  of  such  witness,  and  when  no  effort  was  made  to 
procure  a  continuance  because  of  his  absence.^ *^  Nor  will  the 
absence  of  defendant  upon  the  trial  of  the  action  warrant  an 

7  National  Surety  Co.  v.  State  »  See  Matthis  r.  Town  of  Cam- 
Bank,  56  C.  C.  A.,  657,  120  Fed.,  eron,  62  Mo.,  504;  Gott  v.  Carr,  6 
593,  61  L.  R.  A.,  394.  G.  &  J.,  309;   Shaffer  r.  Sutton,  49 

8  Knox  County  v.  Harshman,  111.,  506;  Crim  v.  Handley,  4  Otto, 
133   U.    S.,   152,   10    Sup.    Ct.    Rep.,  652. 

257.  10  Gott  r.  Carr,  6  G.  &  J.,  309. 


206  INJUNCTIONS.  [chap.  III. 

injunction  against  the  judgment,  since  it  is  the  duty  of  a 
defendant  to  be  present  at  the  trial,  in  person  or  by  attorney, 
to  avail  himself  of  his  defense  to  the  aetion.^i  And  the  mere 
neglect  of  a  public  officer,  such  as  the  chairman  of  a  board 
of  trustees  of  a  town,  to  defend  an  action  against  the  town 
which  he  represents,  will  not  justify  a  court  of  equity  in 
restraining  the  payment  of  the  judgment  in  the  absence  of 
any  showing  of  fraud  or  collusion.^-  So  a  judgment  will  not 
be  enjoined  because  of  the  absence  of  one  of  defendant's  coun- 
sel upon  the  trial,  nor  because  one  of  the  witnesses  for  defend- 
ant was  so  sick  during  his  examination  as  to  impair  his  recol- 
lection, and  render  him  incapable  of  stating  material  facts 
within  his  laiowledge,  defendant  having  failed  to  ask  a  post- 
ponement or  continuance  of  the  trial  upon  this  ground.^^  And 
the  fact  that  defendant  in  an  action  at  law  was,  by  reason  of 
sickness,  unable  to  attend  the  court  to  which  he  was  sum- 
moned, does  not  relieve  him  of  the  duty  of  diligence  in  assert- 
ing his  defense  at  law,  and  affords  no  ground  for  enjoining 
a  judgment  recovered  against  him  upon  a  just  and  meritorious 
cause  of  action.^"*  So  where  defendant  in  a  judgment  seeks 
to  enjoin  its  enforcement  against  him  upon  the  ground  of  an 
offer  of  compromise  and  settlement  made  before  the  judgment 
and  pending  the  suit  at  law,  which  offer  was  accepted  by  plain- 
tiff, but  defendant  failed  to  pay  the  money  required,  the  fact 
that  he  paid  no  further  attention  to  the  suit  after  the  offer 
of  compromise  will  not  warrant  the  court  in  enjoining  the 
judgment.^  •'"' 

§  211.  Distinction  between  mistakes  of  fact  and  of  law. 
With  regard  to  the  relief  against  judgments  obtained  through 
mistake,  a  distinction  is  drawn  between  cases  where  the  mis- 
take is  one  of  fact  and  where  it  is  of  law.  And  while  in  the 
former  case  the  relief  is  freely  exercised  upon  sufficient  cause 

I'Gott   r.   Carr,   6  G.  &  J.,  309.  I'f  Grim  v.  Handley,  4  Otto,  652. 

i^Matthis  V.  Town  of  Cameron,  !•»  Shaffer  v.  Sutton,  49  111.,  506. 
62  Mo.,  504.  1''  Lowry  v.   Sloan,  51   Ga.,  633. 


CHAP.  III.]  AGAINST   JUDGMENTS.  207 

shown,  equity  will  not  interfere  where  the  mistake  is  one  of 
law.^^  Thus,  a  naked  mistake  in  law  will  not  warrant  an 
injunction  against  a  judgment  upon  a  note  which  was  executed 
voluntarily  and  with  full  knowledge  of  all  the  facts.^"^  Nor 
will  the  relief  be  awarded  where  the  mistake  is  mutual  to 
both  parties  to  the  action,  as  where  defendant  confessed  judg- 
ment for  the  purpose  of  afterward  removing  the  cause  to  a 
higher  court  on  appeal,  and  it  being  afterward  found  that 
the  right  of  appeal  did  not  exist.^^  Even  though  the  damages 
are  obviously  excessive,  yet  there  being  no  fraud,  but  simply 
a  mistake  of  law  in  which  both  parties  have  joined,  the  injunc- 
tion will  be  refused.i^  Nor  will  the  fact  that  the  mistake 
was  caused  by  the  suggestion  and  advice  of  the  court  consti- 
tute sufficient  ground  for  an  injunction.-*^ 

§  212.    Mistake   of   fact  ground    for   enjoining   judgment. 

Though  a  mistake  of  law  does  not  constitute  sufficient  ground 
to  restrain  a  judgment,  as  we  have  seen  in  the  preceding  sec- 
tion, yet  a  mistake  of  fact  will  frequently  warrant  a  court  of 
equity  in  the  exercise  of  this  jurisdiction.  Thus,  a  judgment 
obtained  through  mistake,  for  an  amount  greater  than  that 
actually  due,  constitutes  such  a  case  as  will  warrant  the  inter- 
position of  equity.-^  If,  however,  the  judgment  has  been  ren- 
dered on  an  account  stated  between  the  parties,  the  amount 
due  being  agreed  upon,  it  will  not  be  enjoined  because  of  an 
alleged  mistake  in  the  account,  which  was  not  discovered  until 
after  the  verdict  was  rendered,  and  after  the  time  for  a  new 
trial  had  elapsed.^^  Where  the  appearance  of  a  defendant  was 
entered  by  mistake,  and  without  service  of  process  upon  him, 

16  Hubbard  v.   Martin,    8    Yerg.,        is  Richmond  &  S.  R.  Co.  v.  Ship- 
498;  Richmond  &  S.  R.  Co.  v.  Ship-    pen,  2  P.  &  H.    (Va.),  327. 

pen,  2  P.  &  H.   (Va.),  327;   Risher  i9  Id. 

V.    Roush,    2    Mo.     (2d     ed.),     77;  20  Risher   v.   Roush,    2   Mo.    (2d 

Meem    v.    Rucker,    10    Grat,    506;  ed.),  77. 

Shricker  v.  Field,  9  Iowa,  366.  21  Chase    v.    Manhardt,    1    Bland, 

17  Hubbard    v.    Martin,    8    Yerg.,  333. 

498.  .  22  Falls  v.  Krebs,  5  Md.,  365. 


208  INJUNCTIONS.  [chap.  III. 

a  proper  case  is  afforded  for  relief  against  the  judgment ;  but, 
in  such  case,  the  injunction  should  not  be  made  perpetual,  and 
should  only  continue  until  defendant  can  be  let  in  to  make  his 
defense  at  law  in  the  court  where  tl^e  judgment  was  obtained.--' 
But  the  fact  that  process  was  served  upon  the  wrong  person, 
who  makes  no  defense  at  law,  but  allows  judgment  to  be 
taken  against  him  by  default,  and  execution  having  issued, 
gives  a  forthcoming  bond,  will  not  warrant  an  injunction.^^ 

§  213.  Mistaiie  of  clerk;  second  injunction  allowed  for  mis- 
take ;  miscalculation  of  jury.  A  judgment  of  an  inferior  court 
may  be  enjoined  where  complainants  show  a  good  defense 
upon  the  merits,  which  they  were  prevented  from  making  by 
the  dismissal  of  their  appeal,  because  of  a  mistake  of  the  clerk 
in  not  drawing  the  appeal  bond  properly,  and  without  fault 
on  their  part.-^  Even  after  one  injunction  against  a  judgment 
has  been  dissolved,  another  may  be  granted  and  made  per- 
petual upon  new  matter  of  which  complainant  was  ignorant  at 
the  time  of  the  dissolution  of  the  first,  the  new  equity  con- 
sisting of  a  mistake  as  to  an  important  fact  of  which  both 
parties  were  ignorant  at  the  time  the  judgment  was  obtained 
and  the  former  injunction  dissolved.^^  And  a  mistake  or  a 
miscalculation  of  the  jury,  such  as,  if  discovered  in  time,  would 
have  furnished  good  ground  for  a  new  trial,  will  warrant  a 
court  of  equity  in  restraining  a  judgment.^' 

§  214.  When  judgment  too  large  injunction  allowed  only  as 
to  excess.  Where  the  mistake  consists  either  in  awarding 
judgment  or  in  issuing  execution  for  an  amount  greater  than 
that  which  is  actually  due,  the  injunction  should  be  allowed 
only  as  to  the  excess  over  and  above  that  justly  due.     Thus, 

-•■•  Campbell  r.    lidwards,    1     Mo.         •■;<■  Armstrong     r.     Hickman,       6 
(2(1  ed.),  231.  Munf.,  287. 

■-;■«  Chisholm  r.  Anthony,  2  H.  &  -iT  Chase  v.  Manhardt,  1  Bland, 
M..  13.  333. 

'-;•'•  Saunders  r.   .lonnings.   2  J.  .1. 
Marsh.,  513. 


CHAP.  III.]  AGAINST    JUDGMEXTS.  209 

where,  through  mistake,  judgment  is  obtained  for  too  great 
an  amount,  the  verdict  itself  will  not  be  disturbed  as  to  the 
sum  really  due,  nor  will  a  new  trial  be  ordered;  the  judg- 
ment will  merely  be  enjoined  as  to  the  excess  and  allowed  to 
operate  as  to  the  remainder.-*^  Or  where  an  error  has  been 
committed  in  issuing  a  writ  of^.  fa.  for  an  amount  greater 
than  that  to  which  the  judgment  creditor  is  entitled,  the 
injunction  will  be  limited  to  the  amount  erroneously  included, 
and  the  whole  judgment  will  not  be  enjoined.^'^ 

§  215.  Mistake  of  court  ground  for  injunction ;  facts  should 
be  stated  in  bill.  The  cases  in  which  relief  by  injunction 
against  a  judgment  at  law  may  be  allowed,  because  of  mis- 
takes of  fact,  are  not  limited  to  mistakes  on  the  part  of  the 
parties  to  the  litigation,  and  relief  has  been  allowed  because 
of  mistakes  of  fact  upon  the  part  of  the  court.  For  example, 
where  a  bill  of  exceptions  is  dismissed  in  an  appellate  court 
because  of  a  mistake  in  the  date  of  the  certificate,  but  such 
mistake  is  shown  to  have  been  that  of  the  judge  who  signed 
the  bill,  and  not  of  the  parties  or  counsel,  it  is  proper  to  re- 
strain the  enforcement  of  the  judgment  until  a  full  hearing 
can  be  had  upon  the  merits.^^  So  where  by  the  mistake  of 
the  magistrate  before  whom  a  cause  is  pending,  in  failing 
to  note  the  name  of  counsel  for  the  defense  of  a  suit,  judg- 
ment is  had  by  default,  and  the  defendant  in  ignorance  of 
the  facts  permits  the  time  for  an  appeal  to  elapse,  execu- 
tion upon  the  judgment  may  be  enjoined  until  a  full  hear- 
ing can  be  had  upon  the  merits,  the  bill  disclosing  a  defense 
to  the  original  action.  In  cases  of  this  nature,  however, 
where  one  seeks  to  enjoin  a  judgment  against  him  upon  the 
ground  that  he  had  a  good  defense  at  law  which  he  was 
prevented  from  making,  it  is  not  sufficient  to  allege,  gen- 
erally, that  he   was  prevented   from  making  his  defense  by 

-"*  Barrow   v.    Robichaiix,   14    La.         ■;!'  Kohn  \-.  Lovett,  43  Ga.,  179. 
An.,  207.  ""  Brewer  r.  Jones,  44  Ga.,  71. 

14 


210  INJUNCTIONS.  [chap.  III. 

mistake,  oversight,  or  omission,  but  he  should  allege  the 
facts  as  they  occurred,  so  that  the  court  may  determine 
whether  the  result  was  due  to  any  fault  or  want  of  diligence 
upon  his  part  in  failing  to  defend  at  law.^^ 

§  216.  Mistakes  of  counsel  no  ^ound  for  injunction.  Not- 
withstanding injunctions  are  somewhat  freely  granted  against 
the  enforcement  of  judgments  upon  the  ground  of  mistakes  of 
fact,  as  is  thus  shown,  yet  the  mere  omissions  or  mistakes  of 
counsel  in  the  conduct  or  management  of  an  action  at  law 
can  not  be  made  the  ground  for  renewing  the  litigation  by 
enjoining  the  judgment.  Defendant  in  a  judgment  can  not, 
therefore,  enjoin  its  enforcement  because  of  matters  of  defense 
of  which  he  might  have  availed  himself  in  the  former  action,  but 
which  were  omitted  under  the  advice  of  his  counsel.^^  ]sjor  is 
it  sufficient  ground  for  enjoining  a  judgment  that  plaintiff's 
attorney  has  failed  to  enter  a  credit  upon  the  execution  in 
accordance  with  an  agreement  to  that  effect.^^ 

§  217.  Laches  and  negligence  a  bar  to  relief.  Laches  upon 
the  part  of  the  complainant  seeking  relief  by  injunction  upon 
the  ground  of  mistake,  may  debar  him  from  the  aid  of  equity, 
even  in  a  case  which  is  otherwise  meritorious.  And  when  com- 
plainant seeks  to  enjoin  a  judgment  because  of  a  mistake  in 
the  date  of  the  bill  of  exceptions,  but  he  has  been  guilty  of 
gross  laches  in  not  endeavoring  to  correct  the  mistake  in  due 
season,  having  been  fully  apprised  of  it,  he  will  be  refused 
relief.^^  So  a  judgment  will  not  be  enjoined  by  reason  of  a 
mistake  in  defending  the  action,  the  only  effect  of  which  was 
that  defendant  in  the  action  failed  to  obtain  a  review  of  his 
case  in  a  higher  court,  the  real  purpose  of  the  injunction  suit 
being  only  to  obtain  such  review,  the  defendant  having  shown 
a  want  of  ordinary  care  and  diligence  in  the  conduct  of  his 
defense.35 

^1  Simons  v.  Martin,  53  Ga.,  620.         •'!■»  Smith  v.  Fouclie,  55  Ga.,  120. 
:i-  Hambrick  v.  Crawford,  55  Ga.,         ■■^>  Quinn    v.    Wetherbee,    41   Cal., 

335.  247. 
33  Brown  v.  Wilson,  56  Ga.,  534. 


CHAP.  III.]  AGAINST   JUDGMENTS.  211 

§  218.  Remedy  at  law  bars  relief.  The  jurisdiction  of  equity 
in  restraining  the  collection  of  judgments  upon  the  ground  of 
mistake  is  thus  shown  to  be  governed  by  the  same  general  and 
controlling  principles  which  prevail  in  other  branches  of  its 
extraordinary  preventive  jurisdiction.  And  it  is  important 
also  to  note  that  the  general  doctrine  denying  relief  by  injunc- 
tion where  ample  remedy  exists  at  law  applies  with  equal  force 
in  this  as  in  all  other  branches  of  the  law  under  consideration. 
Thus,  an  injunction  will  not  be  granted  for  the  correction  of 
a  mistake  in  an  allowance  and  classification  by  a  court  of  pro- 
bate of  claims  against  an  estate,  when  ample  relief  may  be  had 
by  proceedings  in  the  probate  court  itself  to  have  the  mistake 
corrected  by  an  entry  nunc  pro  tunc.^^  Nor  will  the  enforce- 
ment of  a  judgment  be  restrained  because  of  a  mistake  on  the 
part  of  defendant  at  law  in  interposing  his  defense  in  proper 
time,  when  the  court  of  law  has  ample  power  to  afford  relief, 
but  has  refused,  after  hearing,  to  set  aside  the  judgment  upon 
defendant's  application.^^ 

§  219.  Distinction  between  ignorance  of  law  and  of  fact. 
The  distinction  already  observed  between  mistakes  of  law  and 
of  fact  in  the  exercise  of  the  jurisdiction  of  equity  in  restraint 
of  judgments  applies  with  equal  force  to  cases  where  the  relief 
is  sought  upon  the  ground  of  ignorance.  And  it  is  held  that, 
while  ignorance  of  material  facts  necessary  to  establish  a  legal 
defense  may  warrant  the  interposition  of  equity,  ignorance  of 
law  does  not  afford  sufficient  reason  for  the  exercise  of  the  jur- 
isdiction.3^  Thus,  where  one  has  failed  to  make  his  defense  at 
law  through  ignorance  of  the  nature  of  the  proceedings  against 
him,  and  of  the  necessary  steps  to  be  taken,  he  will  not  be 
allowed  to  enjoin  the  judgment.^^ 

36  Jillett  V.  Union  National  Bank,  39  Meem  v.  Rucker,  10  Grat,  506. 

56  Mo.,  304.  And  it  is  held  that  in  such  case,  a 

3v  Reagan  v.  Fitzgerald,  75  Cal.,  mere  averment  of  the  facts  relied 

230,   17  Pac,   198.  upon  to  entitle  complainant  to  re- 

3s  Meem  v.  Rucker,  10  Grat.,  506;  lief  against  the  judgment,  will  not 

Shricker  v.  Field,  9  Iowa,  366.  suffice,  but   the  matter   alleged   in 


212  INJUNCTIONS.  [chap.  III. 

§  220.     Ignorance  of  fact,  when  ground  for  injunction.     It 

may  be  laid  down  as  a  general  rule  that  ignorance  of  im- 
portant facts  material  to  the  establishment  of  a  defense  to  the 
action  at  law  will,  in  the  absence  of  laches  on  the  part  of  de- 
fendant, warrant  a  court  of  equity  in  extending  relief  by  in- 
junction against  the  judgment.^"  Thus,  where  defendant,  before 
and  at  the  time  of  recovering  judgment  against  him,  was  igno- 
rant of  facts  which  would  have  constituted  a  valid  defense  at 
law,  an  injunction  may  be  allowed  to  restrain  the  judgment.^^ 
So  where,  by  collusion  upon  the  part  of  the  president  of  a 
corporation,  judgment  was  recovered  against  the  corporation, 
its  shareholders,  who  were  ignorant  of  the  proceedings,  and 
who  had  no  opportunity  of  resisting  the  judgment,  are  entitled 
to  an  injunction.^-  So  also,  where  the  purchaser  of  lands  is 
sued  for  the  unpaid  purchase  money,  and  remains  in  ignorance 
of  the  fact  that  the  vendor  had  not  a  good  title  to  the  premises 
conveyed  until  after  judgment  is  recovered  against  him,  such 
ignorance  will  be  regarded  as  a  sufficient  excuse  for  not  de- 
fending at  law,  and  the  purchaser  may  still  be  allowed  an  in- 
junction against  the  judgment."*-''  But  in  all  such  cases,  com- 
plainant must  be  entirely  free  from  fault  or  neglect ;  and  where, 
by  the  exercise  of  reasonable  diligence,  he  might  have  ascer- 
tained the  facts  constituting  his  defense,  the  relief  will  be  de- 
nied."** 

excuse  for  not  having  defended  at  can    r.    Lyon,   3    Johns.     Ch.,    351; 

law  must  be  proven.       Id.       Upon  Fitch  r.  Polke,  7  Blackf.,  564. 
this  point  the  case  certainly  lacks        -ti  igiehart  v.  Lee,  4  Md.  Ch.,  514; 

the  weight  of  authority,  and  it  is  Hubbard    i\    Hobson,    Breese,    147. 

believed  that  no  other  decision  has  See   also   Holt's   Ex'rs    r.    Graham, 

gone  to  this  extent.  2  Bibb,  192:    Cunningham   r.   Cald- 

40  Hubbard     v.    Hobson,    Breese,  well,  Hardin,  131. 
147;    Igiehart    r.    Lee,    4    Md.    Ch.,         *-  Cape  Sable  Company's  Case,  3 

514;    Cape   Sable  Company's   Case,  Bland,  60G. 

3  Bland,  606.     And  see  Williams  v.         *■■  Fitch  r.  Polke,  7  Blackf.,  564. 
Lee,  3  Atk.,  223;   LeGuen  r.  Gouv-         ■*+ Harding  r.   Hawkins.   141  111., 

erneur,  1   Johns.  Cas.,  436;  Barker  .^)72,  31  N.  E.,  307,  33  Am.  St.  Rep., 

V.  Elkins,   1   Johns.  Ch.,  465;    Dun-  347;   Spokane  Coop.  M.  Co.  r.  Pear- 
sou,  28  Wash.,  118,  68  Pac,  165. 


CHAP.  III.]  AGAINST    .lUDOMEXTS.  213 

§221.  Ignorance  or  misconduct  of  attorney  no  ground  for 
enjoining  judgment;  insolvency  of  attorney  immaterial.  The 
operation  of  the  rule,  as  regards  ignorance  of  law,  is  not  con- 
fined to  the  case  of  a  party's  own  ignorance,  but  in  conformity 
with  the  maxim  qui  facit  per  allum  facit  per  sc,  ignorance  or 
mistake  on  the  part  of  counsel  employed  in  a  cause  will  not  au- 
thorize an  injunction  against  the  judgment.^-'''  So  in  the  ab- 
sence of  fraud  mere  negligence  on  the  part  of  an  attorney  re- 
tained to  defend  a  suit,  is  not  sufficient  ground  for  the  inter- 
ference of  equity  to  restrain  a  judgment.-**^  So  the  negligence 
or  improper  conduct  of  an  attorney  employed  to  defend  a  suit 
at  law,  or  his  failure  or  neglect  to  defend  the  action,  will  not 
justify  an  injunction  against  the  judgment.'*'^  And  in  such 
cases,  the  relief  is  properly  denied,  even  though  it  appeared 
that  the  defendant  had  a  good  defense  to  the  action,  and  the 
attornej^  through  whose  fault  the  judgment  resulted,  is  in- 
solvent.'*^ Nor  does  it  constitute  ground  for  relief  that  the 
plaintiff  in  the  judgment  has  knowingly  permitted  the  time 
to  pass  in  which  the  defendant  might  have  had  the  judgment 
set  aside,  without  informing  the  defendant  of  its  existence.^^ 
Nor  wnll  the  abandonment  of  a  cause  by  an  attorney  w^arrant 
an  injunction  against  the  judgment  where  other  counsel  were 
employed  and  a  trial  had,  there  being  no  allegations  of 
fraud.^<^ 

■i-'  Shricker  v.  Field,  9  Iowa,  366;  Inown,  97  Ky.,  757,  31  S.  W.,  874. 

Winchester    v.    Grosvenor,    48    111.,  31   L.  R.  A.,   33,  53  Am.   St.  Rep.. 

517.  437;   Kern  v.  Strausberger,  71  111. 

^«Wynn  v   Wilson,    Hemp.,    698.  413;    Clark  v.  Ewing,  93  111.,  572; 

But  in  a  subsequent  application  to  Bardonski    r.   Bardonski,    144    111., 

the  court  for  an  injunction  in  the  284,  33  N.  E.,  39. 
same  cause,  fraud  being  shown  in         -s*^  Kern   v.   Strausberger,   71   111 , 

the   assignment  of    the    notes    on  413;    Clark  v.   Ewing,  93  111.,  572; 

which  the  judgment  was  founded,  Bardonski    r.   Bardonski,    144    111., 

the  relief  was  allowed.     See   note  284,   33  N.  B.,  39. 
to  same  case.  ^:>  Amherst  College  r.  Allen,  165 

*~  Chester  v.  Apperson,  4  Heisk.,  Mass.,  178,  42  N.  E.,  570. 
639;    Odell   r.  Mundy.  59  Ga.,  641:         -"Winchester    r.    Grosvenor,    48 

Amherst  College  r.  Allen,  165  Mass.,  111.,    517. 
178,  42  N.   E.,  570:    Payton   r.   Mc- 


214  INJUNCTIONS.  [chap.  III. 

§222.    False  return  of  service  by  sheriff ;  diligence  required. 

Where  judgment  has  been  rendered  against  defendant  without 
notice  and  without  appearance  or  defense  on  his  part,  the 
sheriff  having  made  a  false  return  of  service,  equity  will  re- 
lieve against  the  judgment  on  the  ground  that  the  circum- 
stances rendering  it  void  are  extrinsic  to  the  judgment,  and  a 
court  of  law  is,  therefore,  powerless  to  arrest  its  execution.^i 
Nor,  in  such  a  case,  is  it  material  to  inquire  whether  a  defense 
could  have  been  made  at  law,  the  injury  complained  of  being 
that  the  judgment  was  rendered  without  notice  and  without 
opportunity  to  defend.^-  But  it  is  held  that  an  allegation  in 
the  bill  that  defendant  in  the  action  at  law  did  not  come  into 
possession  of  the  facts  upon  which  he  asks  relief  against  the 
judgment  will  not,  of  itself,  suffice,  but  it  must  appear  that 
he  could  not  have  obtained  such  data  by  the  use  of  ordinary 
diligence.-'^^  And  when  it  is  sought  to  enjoin  a  judgment  upon 
the  ground  that  the  cause  of  action  had  been  fully  paid  be- 
fore judgment,  of  which  fact  defendant  was  ignorant  at  the 
time  of  the  hearing,  but  the  facts  disclose  gross  negligence 
on  his  part  in  not  defending  upon  that  ground,  the  injunc- 
tion will  be  refused.^^ 

§223.  Assignee  of  note;  notice  of  equities.  Proceedings 
under  a  judgment  in  favor  of  the  assignee  of  a  note  for  val- 
uable consideration  will  not  be  restrained  where  the  assignee 
was  ignorant  of  complainant's  equities  when  he  took  the  note, 
even  though  such  equities  might  warrant  the  court  in  re- 
straining the  payee  of  the  note  from  its  collection.-'^^  But  the 
rule  is  otherwise  when  the  assignee  has  taken  the  note  with 
notice."''^ 

51  Ridgeway  v.  Bank,  11  Humph.,  ■•-  Ridgeway  v.  Bank,  11  Humph., 

523;     Huntington   v.     Crouter,     33  523. 

Ore.,  408,  54  Pac,  208,  72  Am.  St.  ■<■•  Leggett  r.  Morris,  6  Sm.  &  M., 

Rep.,   726;    Dowell   r.  Goodwin,   22  723. 

R.  I.,  287,  47  Atl.  693,  51  L.  R.  A.,  •■'  Tutt  r.  Ferguson,  13  Kan.,  45. 

873,  84  Am.  St.  Rep.,  842.  ''"•  Donelson  r.  Young,  Meigs,  155. 

•'•«  King  r.  Baker,  1  Yerg.,  450. 


CHAP.  III.]  AGAINST   JUDGMENTS.  215 

§224.  Surprise  as  a  ground  for  relief;  gaming.  Surprise 
will  authorize  a  court  of  equity  to  interfere  in  certain  cases 
and  restrain  proceedings  under  a  judgment.  Thus,  where  de- 
fendant had  no  knowledge  of  the  existence  of  the  suit  at  law 
against  him  until  after  judgment  obtained,  an  injunction  has 
been  allowed  on  the  ground  of  surprise.''^  But  an  execution 
under  a  judgment  in  attachment  will  not  be  enjoined  on  the 
ground  of  surprise  where  process  was  actually  served  upon 
the  defendant.^*  Nor  can  the  validity  of  the  judgment  upon 
which  the  attachment  was  issued  be  assailed  collaterally  in  a 
suit  in  equity  to  restrain  proceedings  under  the  judgment.^^ 
Where  the  consideration  for  the  promise  on  which  the  action 
was  brought  was  money  lost  at  gaming,  if  the  defendant  is 
surprised  at  the  trial,  it  is  held  that  he  may  afterward  come 
into  equity  for  relief.*'^  But  the  mere  want  of  preparation  for 
trial  on  the  part  of  defendant  in  the  action  will  not  justify  an 
injunction  against  the  judgment,  when  no  application  was 
made  for  a  postponement  of  the  trial  upon  that  ground,  and 
when  the  case  was  fully  tried  upon  its  merits.^^ 

5T  Mosby  V.  Haskins,  4  Hen.  &  ««  White  v.  Washington,  5  Grat., 
M.,  427.  645. 

58  Peters  v.  League,  13  Md.,  58.        6i  Dilly  v.   Barnard,   8   G.   &   J., 

59  Id,  170. 


216  INJUNCTIONS.  [chap.  III. 


V.     Irregular,  Erroneous  and  Void  Judgments. 

§  225.     Irregularities,  no  ground  for  injunction. 

226.  Errors  of  law,  no  ground  for  injunction. 

227.  The    rule   illustrated;    judgment   against    minor;    exception    to 

rule. 

228.  Void    judgments;    authorities    conflicting. 

229.  Judgment  void  for  want  of  service  of  process  enjoined. 
229a.  Dci'ensc   to  action  on  which   judgment  founded. 

230.  Tendency  toward  adoption  of  test  as  to  remedy  at  law. 

231.  Injunction  against  sale  under  execution;  remedy  at  law  the  test, 
231a.  Effect  of  void  judgment  on  statute  of  limitations. 

§  225.  Irregularities  no  ground  for  injunction.  It  is  a  well 
established  rule  that  the  interference  of  equity  will  not  be 
granted  for  the  purpose  of  correcting  mere  irregularities  or  in- 
formalities in  judicial  proceedings.  And  where  a  judgment 
is  assailed  upon  the  ground  of  irregularity  in  the  proceedings 
antecedent  to  obtaining  the  judgment,  an  injunction  will  not 
he  allowed.^  Thus,  in  the  absence  of  allegations  of  fraud,  ir- 
regularities in  the  service  of  process  will  not  constitute  ground 
for  an  injunction,  upon  the  general  principle  that  equity  will 
not  sit  as  a  court  of  review  to  revise  irregularities  in  pro- 
ceedings at  law.-  Especially  will  the  relief  be  refused  in  such 
case  where  the  bill  admits  an  indebtedness  without  offering 
to  pay  it.-'^  So  equity  will  not  restrain  an  execution  for  such 
irregularities  as  entering  up  the  judgment  in  the  firm  name  in- 
stead of  the  individual  names  of  the  persons  composing  a  part- 

1  Gardner  v.  Jenkins,  14  Md..  58;  51  N.  E.,  330;    Gum-Elastic  R.  Co. 

Boyd   V.   Chesapeake,   17   Md.,  195;  v.  Mexico  P.  Co.,  140  Ind.,  158,  39 

Stites  V.  Knapp,  2  Ga.   Decis.,  36;  N.   E.,   443,-30  L.  R.   A.,   700.    See 

Drake  v.  Hanshaw,  47   Iowa,  291;  also  Murphree  v.  Bishop,  79   Ala., 

Clopton   7;.  Carloss,  42     Ark.,    560;  404.' 

Devinney    v.    Mann,   24   Kan.,   682;  ^  Gardner  ?'.  Jenkins,  14  Md.,  58; 

Galveston,    H.   &   S.   A.    R.    Co.     v.  Boyd    r.   Chesapeake,  17  Md.,  195; 

Dowe,   70  Tex.,   1 ;    6   S.    W.,    790;  Stites   r.  Knapp,  2  Ga.  Decis.,  36; 

Rhodes    B.    F.    Co.    r.    Mattox,    135  V/indisch  r.  Gussett,  30  Tex.,  744. 

Ind.,  372,  34   N.  E..  326,  35  N.  E.,  See  Carter  v.  Griffin,  32  Tex.,  213. 

11  ;  Hart  r.  O'Ronrke,  151  Ind.,  205,  ^  Gardner  v.  Jenkins,  14  Md.,  58. 


CHAP.  III.]  AGAINST   JUDGMENTS.  217 

nersliip,  the  remedy  at  law  being  considered  ample  by  a  mo- 
tion to  set  aside  the  judgment.^  So  the  enforcement  of  a 
judgment  rendered  in  a  garnishment  snit  will  not  be  enjoined 
upon  the  ground  that  the  affidavit  required  by  law  was  not 
filed,  the  remedy  being  by  appeal.-'"'  And  it  may  be  laid  down 
as  a  rnlo  that  the  powers  of  equity  can  not  be  invoked  to 
restrain  execution  upon  the  ground  of  irregularity,  since  it 
is  the  province  of  a  court  of  law  to  annul  its  own  i)rocess  or 
correct  any  errors  in  its  own  proceedings  concerning  execu- 
tions.*' Nor,  in  the  absence  of  fraud,  will  errors  or  irregulari- 
ties in  the  action  of  the  court  warrant  an  injunction  against  a 
judgment,'''  especially  when  the  party  complaining  might  have 
availed  himself  of  such  errors  upon  an  appeal,  if  prosecuted 
in  due  season.^  And  although  no  remed}'  be  provided  by  ap- 
peal from  the  judgment  of  a  justice,  its  enforcement  will  not 
be  enjoined  because  of  error  in  the  proceedings." 

§  226.  Errors  of  law,  no  ground  for  injunction.  In  accord- 
ance with  the  principle  noticed  in  the  preceding  section,  that 
a  court  of  equity  will  not  sit  as  a  court  of  errors  to  revise  or 
correct  proceedings  at  law,  an  injunction  will  not  be  granted 
against  a  judgment  because  of  errors  in  the  proceedings  at  law, 
or  in  the  rulings  of  the  court,  but  the  judgment  wnll  be  left 
to  be  reversed  in  a  court  of  review.^ ^     An  additional  reason 

4  Mclndoe    v.   Hazelton,   19  Wis.,  «  Galveston,  H.  &  S.  A.  R.  Co.  o. 

567.      But   in    Hampson   v.   Weave,  Dowe,  70  Tex.,  1. 

4   Iowa,   13,  an  injunction  against  lo  Stocltton    v.   Briggs,    5    Jones 

an   execution   was   upheld    on     the  Eq.,    309;    Reynolds    r.   Horine,   13 

ground  that  the  execution  was  im-  B.    Mon.,    234;    Dunn     /-.     Fish,     8 

properly  and  irregularly  issued.  Blackf.,    407;    Cassell    /•.    Scott,    17 

r^^  Hart  ?\  O'Rourke,  151  Ind.,  205,  Ind.,    514;    Gum-Elastic    R.    Co.    v. 

51  N.  E.,  330.  Mexico  P.  Co.,  140  Ind.,  158,  39  N. 

0  Wagner  v.  Pegues,  10  S.  C,  259;  E.,  443,  30  L.   R.  A.,  700;    Hart  v. 

Will-.inson  v.  Rewey,  59  Wis.,  554;  O'Rourke,  151  Ind.,  205,  51  N.  E., 

Hastings   v.    Cropper,    3    Del.     Ch.,  330;  Rosenberger  r.  Bowen  84  Va.. 

165.  660,  5  S.  E.,  699;   Commercial  Un- 

7  Neville  r.  Pope,  95  N.  C,  346.  ion  Assurance  Co.  v.  Scammon,  133 

8  Clopton  r.  Carloss,  42  Ark.,  560.  111.,  627,  23  N.  E.,  406. 


218  INJUNCTIONS.  [chap.  III. 

for  refusing  the  relief  upon  the  ground  of  error  is  found  in 
the  fact  that  if  the  jurisdiction  were  entertained  it  would  be 
virtually  permitting  the  error  of  a  court  of  law  to  create  an 
equity. 11  Especially  where  complainant  admits  the  debt  to  be 
due  will  the  interposition  of  equity  be  refused,  although  it  is 
alleged  that  the  judgment  is  erroneous  and  contrary  to  law.^- 
Even  where  the  error  relied  upon  may  have  been  sufficient  to 
w^arrant  a  new  trial  at  law,  equity  will  not  interfere.i^  Nor 
is  the  fact  that  a  court  of  law  has  erred  in  excluding  testi- 
mony wdiich  should  have  been  admitted  sufficient  to  warrant 
equity  in  departing  from  the  rule  here  laid  down.^-*  And 
where  a  judgment  has  been  affirmed  by  a  court  of  final  resort, 
which  court  overlooked  a  material  defect  in  the  proceedings, 
thereby  confirming  an  erroneous  judgment,  an  injunction  will 
not  be  granted.!  ^  And  wdiere  a  court  of  law  has  refused  an 
application  which  was  addressed  largely  to  its  discretion, 
equity  will  not  for  this  reason  interfere.  Thus,  the  refusal  to 
grant  a  motion  for  a  continuance  based  upon  an  affidavit  will 
not  authorize  an  injunction  against  the  judgment.^'"'  Nor  will 
the  fact  that  trifling  errors  have  been  committed  in  assessing 
the  costs  of  a  judgment  afford  any  ground  for  enjoining  the 
execution.!^    And  it  would  seem  that  an  error  in  the  computa- 

11  Stockton  V.  Briggs,  5  Jones  equally  available  at  law  as  in 
Eq.,  309.  equity  and   the   party  has   had  an 

12  Reeves  v.  Cooper,  1  Beas.,  223,  opportunity  of  making  the  defense 
aflBrmed  on  appeal  to  the  Court  of  at  law,  a  court  of  equity  has  no 
Errors  and  Appeals,  lb.,  498.  jurisdiction  to  relieve  against  the 

13  Reynolds  v.  Horine,  13  B.  Mon.,  judgment,  unless  some  special 
234.  ground    for    the   relief    can    be   es- 

14  Dunn  r.  Fish,  8  Blackf.,  407;  tablished,  other  than  that  of  error 
Vaughn  v.  Johnson,  1  Stockt.,  173.  in  law  committed  by  the  court 
In  the  latter  case  the  court  say:  which  had  jurisdiction  of  the  case." 
"An  interference  on  such  ground  i"'  Nicholson  r.  Patterson,  6 
would   convert   the   court  of  chan-  Humph.,  394. 

.eery  into  a    court    of    errors,  and  i«  Western  r.   Woods,    1    Tex.,    1. 

would    be    an    assumption     of     ju-  I'Calderwood    v.    Trent,    9    Rob. 

risdiction    which    does    not   belong  (La.),   227. 
to  the   court.       If   the   defense   is 


CHAP.  III.]  AGAINST   JUDGMENTS.  219 

tion  of  interest  on  the  judgment  rendered   and  which  it   is 
sought  to  execute  will  not  warrant  an  injunction.^ ^ 

§227.  The  ride  illustrated;  judgment  against  minor;  ex- 
ception to  rule.  As  still  further  illustrating  the  general  rule 
above  stated,  denying  relief  by  injunction  against  a  judgment 
because  of  errors  in  the  proceedings  at  law,  it  is  held  that  the 
failure  of  the  court  in  which  the  action  was  pending  to  appoint 
a  guardian  ad  litem  to  represent  an  infant  defendant  will  not 
of  itself  warrant  an  injunction  against  the  judgment,  the 
court  having  had  jurisdiction  of  the  person  of  the  defendant 
and  of  the  subject-matter  of  the  action.^^  So  a  judgment  of 
a  justice  of  the  peace  will  not  be  enjoined  because  rendered 
upon  evidence  which  was  insufficient  to  warrant  the  judgment, 
when  relief  may  be  had  at  law  by  certiorari?^  Nor  will  a 
judgment  rendered  by  a  justice  of  the  peace  be  enjoined  be- 
cause of  alleged  errors,  when  the  judgment  itself  is  not  a 
nullity,  and  where  the  party  aggrieved  has  neglected  to  pur- 
sue his  legal  remedy  by  appeal,-^  So  a  judgment  rendered 
by  a  justice  of  the  peace  will  not  be  enjoined  upon  the  ground 
that  the  case  was  tried  before  a  jury  of  twelve  instead  of  six 
as  required  by  law,  since  redress  should  be  had  for  such  an 
irregularity  by  appeal.-^  Where,  however,  in  an  action  for  a 
partition  of  lands  and  for  an  adjustment  of  partnership  affairs 
between  some  of  the  parties,  the  report  of  the  commissioners 
appointed  to  make  partition  and  the  verdict  of  the  jury  are 
so  indefinite  and  uncertain  that  it  is  impossible  to  determine 

IS  Walker   v.   Villavaso.     26     La.  200.    But  in  Texas  it  is  held  that  a 

An.,  42;   Nicklin  v.  Hobin,  13  Ore.,  judgment   may  be  enjoined   which 

406,   10   Pac,   835.  was  rendered  upon  a  written  con- 

19  Drake   v.  Hanshaw,   47    Iowa,  tract  payable   upon    its     face     in 

291;  Levystein  v.  O'Brien,  106  Ala.,  money  of  the  Confederate   States. 

352,  17  So.,  550,  30  L.  R.  A.,  707,  Thompson   v.    Bohannon,    38    Tex., 

54  Am.   St.  Rep.,  56.  241. 

20Rotzein   v.    Cox,    22    Tex.,    62;  22  Rhodes  B.   F.  Co.    v.    Mattox, 

Jordan  v.  Corley,  42  Tex.,  284.  135  Ind.,  372,  34  N.  E.,  328,  35  N. 

21  Rountree  v.   Walker,    46    Tex.,  E..  11. 


220  IXJ UNCTIONS.  [chap.  III. 

what  is  their  real  intent  and  meaning,  it  has  been  held  proper 
to  enjoin  their  enforcement.-^ 

§  228.     Void  judgments ;  authorities  conflicting.     Upon  the 
question  of  the  jurisdiction  of  a  court  of  equity  to  enjoin  a 
judgment   at   law   upon   the   ground   of   its   being   absolutely 
void,   in   distinction   from  one  which  is  merely  irregular   or 
erroneous,  the  authorities  are  exceedingly  conflicting,  and  it 
is  ditficult,  if  not  impossible,  to  harmonize  or  reconcile  them. 
It  has  been  sought  to  establish  the  doctrine  upon  the  distinc- 
tion above  noted,  between  a  void  judgment  and  one  which  is 
tainted  onl}^  with  irregularity,  that  equity  may  properly  en- 
join if  the  judgment  is  absolutely  void,  but  not  if  it  is  merely 
irregular  or  erroneous.    In  other  words,  the  line  is  attempted 
to   be   drawn  between  judgments  which  are  void  and  those 
Avhich  are  only  voidable,  the  rule  thus  contended  for  being  that 
in  the  former  case  equity  may  enjoin,  but  not  in  the  latter.^^ 
However  reasonable  the  doctrine  thus  contended  for  may  ap- 
pear upon   principle,   it  has  not   been   generally  received   or 
adopted  by  the  courts,  and,  aside  from  cases  where  the  in- 
validity of  the  judgment  depends  upon  want  of  jurisdiction 
over   the   defendant   because   of  want   of  service   of  process, 
which  will  be  noticed  hereafter,  the  courts  have  frequently 
refused  to  interfere  by  injunction  because  the  judgment  was 
void  for  want  of  jurisdiction,  or  otherwise. -^"^     The  refusal  to 
interfere  in  cases  where  the  courts  have  thus  withheld  relief 
by  injunction  has  usually  been  based  upon  the  ground  of  a 
remedy  at  law.    Thus,  an  injunction  has  been  refused  against 
a   judgment    and   execution   which   were   absolutely   void,   be- 
cause the  remedy  at  law  b}^  application  to  the  court  in  which 
the  jiiduiiient  was  rendered  was  regarded  as  adequatc^^^     So 

-'•■' Butt  <;.  Oneal,  rA  Ga.,  358.  Iowa,    147;    Smith    v.   Deweese,   41 

•■itEarl  V.  Matheney.  GO  Ind.,  202.  Tex.,  594;  Glass  v.  Smith,  66  Tex., 

-■•  Sanchez   v.   Carriaga,    31    Cal.,  548,  2  S.  W.,  195.     See  also  Cooke 

170;    Crandall    r.    Bacon,    20    Wis.,  v.  Burnham,  32  Tex.,  129. 

63!);    Hart,  i:  T.azaron,  46  Ga.,  396.         iic  Sanchez   v.    Carriaga,   31    Cal., 

See,  contra,  f'onncll   r.  Stelson,  33  170. 


CllAl".  111. J  AGAINST   JUDGMENTS.  221 

where  the  judgment  is  void  for  want  of  jurisdiction  in  the 
court  in  which  the  proceedings  were  had,  it  has  been  lield 
that  equity  should  not  interfere  by  injunction,  but  should 
leave  the  person  aggrieved  to  pursue  his  legal  remedy  for 
redress.-'^  Upon  the  other  hand,  it  is  held  that  a  judgment 
which  is  void  for  want  of  jurisdiction  may  be  enjoined,  even 
though  there  be  a  legal  remedy  by  resisting  the  enforcement 
of  the  execution,  or  otherwise,  the  legal  remedy  not  being  re 
garded  as  fully  adequate  in  such  cases.-^  And  a  judgment 
has  been  enjoined  which  was  void,  because  rendered  for  a  sum 
in  excess  of  the  jurisdiction  of  the  court  as  fixed  by  statute.-^ 
So  the  relief  has  been  granted  when  the  judgment  was  void 
because  rendered  in  vacation.^*^  And  a  United  States  circuit 
court  may  enjoin  the  enforcement  of  a  void  judgment  rendered 
by  a  United  States  district  court  in  another  district.^^  And 
where  the  only  evidence  of  a  judgment  were  certain  minutes 
made  by  the  judge  and  the  unapproved  form  of  a  judgment 
submitted  by  the  attorneys  to  the  clerk  of  the  court,  it  was 
held  that  executions  based  thereon  were  void,  and  their  levy 
should  be  enjoined;  and  the  fact  that  judgment  was  afterward 
regularly  entered  in  the  cause  before  the  determination  of  the 
injunction  suit  would  not  have  the  effect  of  making  the  judg- 
ment relate  back  and  give  validity  to  the  executions  and  thus 
deprive  the  plaintiff  of  the  right  to  relief  against  their  en- 
forcement.^- 

§  229.     Judgment  void  for  want  of  service  of  process  en 
joined.     In  cases  where  the  judgment  which  it  is  sought  to 

-^  Crandall  v.  Bacon,  20  Wis., 
639;  Hart  v.  Lazaron,  46  Ga.,  396. 
And  see,  as  to  defect  in  jurisdic- 
tion, Stokes  V.  Knarr,  11  Wis.,  389. 

-f^  Connell  v.  Stelson,  33  Iowa, 
147;  Caruthers  i\  Hartsfield,  3 
Yerg.,  366;  Smith  r.  Deweese,  41 
Tex.,  594;  Hilliard  /'.  Chew,  76 
Miss.,  763,  25  So.  489.  See  also 
Cooke  V.  Burnham,  32  Tex.,  129. 


-■■>  Wilson   r. 

Sparkman,   17    Fla., 

871. 

30  Mitchell    I 

\   St.    John,   98    Ind., 

598. 

■1  Kirk     r. 

United     States,     124 

Fed.,  324. 

•■■-  Winter  v. 

Coulthard.  94  Iowa, 

312,  62  N.  W 

,  732. 

222  INJUNCTIONS,  [chap.  III. 

enjoin  is  void  for  want  of  jurisdiction  arising  from  the  want 
of»  service  of  process  upon  defendant,  the  courts  have  mani- 
fested less  reluctance  in  granting  the  desired  relief  than  in 
the  classes  of  cases  already  considered.  And  .while  it  is  dif- 
ficult, upon  principle,  to  discover  any  satisfactory  reason  why 
a  judgment  which  is  void  because  defendant  was  not  served 
with  process  and  was  not  subject  to  the  jurisdiction  of  the 
court  should  be  enjoined,  rather  than  when  the  judgment  is 
void  for  other  causes,  it  is  nevertheless  true  that  the  courts 
have  been  far  more  liberal  in  extending  their  extraordinary 
aid  by  injunction  in  the  former  class  of  cases  than  in  the 
latter.33  And  where  a  judgment  appears  to  be  regular  and 
valid  upon  its  face,  but  is  void  because  of  want  of  service  of 
process  upon  the  defendant  corporation  in  manner  provided  by 
law,  and  it  is  shown  that  the  indebtedness  is  due  from  another 
and  different  corporation,  it  is  held  that  the  judgment  may  be 
perpetually  enjoined.^"*  So  equity  will  enjoin  the  enforcement 
of  a  judgment  which  is  based  upon  an  unauthorized  appear- 
ance by  an  attorney  purporting  to  represent  complainant ;  and 
in  such  case,  a  conditional  offer  by  the  complainant  to  pay 
a  certain  sum  in  full  satisfaction  of  the  judgment  and  costs 
does  not  constitute  such  ^  ratification  as  to  bar  him  from  re- 
lief,^^  So  when  a  bill  to  enjoin  a  judgment  alleges  that  de- 
fendant in  the  judgment  was  not  indebted  to  plaintiff  in  any 

•13  See   Hickey   v.    Stone,    60    111..  Iowa,  15,  34  N.  W.,  485;    Gulf,  C. 

458;    Chambers    v.    King   Wrought  &  S.  F.  R.  Co.  v.  Rawlins,  80  Tex, 

Iron  Bridge  Manufactory,  16  Kan.,  579,    16    S.   W.,   430;    Kern   Barber 

270;  Nicholson  V.  Stephens,  47  Ind.,  S.    Co.    v.    Freeze,    96     Tex.,     513, 

185;    Grass  v.   Hess,  37    Ind.,  193;  74    S.    \V.,    303;     Finney   v.  Clark, 

Grand  Tower  Mining  Co.  r.  Schir-  86  Va.,  354,  10  S.  E.,  569;   Mills  v. 

met,    64    111.,    106;       Blakeslee      v.  Scott,   43    Fed.,  452. 

Murphy,  44  Conn.,  188;  Rice  v.  To-  ^'^  Chambers    v.    King    Manufac- 

bias,    89    Ala.,    214,     7     So.,     765;  tory,  16  Kan.,  270.       See  also  San 

Raisin  Fertilizer  Co.  v.  McKenna,  Juan  &  St.  L.  M.  &  S.  Co.  v.  Finch, 

114  Ala.,  274,  21  So.,  816;  Guess  v.  6  Col.,  214. 

Amis.   54   Ark.,    1,   14    S.   W.,  900;  •''•'i  Handley   v.    Jackson,    31    Ore.. 

Gerrish   v.  Hunt,   66    Iowa.  682,  24  552,  50  Pac,  915,  65  Am.  St.  Rep., 

N.  W.,  274;    Gerrish  v.  Seaton,  73  839. 


CHAP.  III.]  AGAINST   JUDGMENTS.  223 

manner;  that  no  service  of  process  was  ever  had  upon  him; 
that  he  know  nothing  of  the  pendency  of  the  action  until  execu- 
tion issued  against  him,  and  that  if  process  was  returned 
served  it  was  by  mistake  or  fraud,  it  is  held  to  be  error  to 
dissolve  the  injunction  and  dismiss  the  bill  upon  motion. ^^ 
And  the  courts  have  repeatedly  held  that  judgments  recovered 
before  a  justice  of  the  peace  may  be  enjoined  as  void  for  want 
of  jurisdiction  when  no  proper  service  of  process  was  had 
upon  the  defendant  in  the  action,  and  when  he  had  no  oppor- 
tunity to  defend.^^  Thus,  where  a  judgment  was  recovered 
against  a  corporation  upon  garnishee  proceedings  before  a 
justice  of  the  peace,  ii^  disregard  of  the  statutory  method  of 
obtaining  service,  so  that  the  justice  acquired  no  jurisdiction 
over  the  corporation,  thereby  rendering  all  the  subsequent  pro- 
ceedings void,  an  injunction  was  allowed  to  prevent  the  en- 
forcement of  the  judgment.^^  And  it  is  held  that  parol  evi- 
dence is  admissible  in  such  case  to  show  the  want  of  notice  of 
pendency  of  the  action.^'-^  But  a  judgment  regularly  obtained 
by  service  of  process  by  leaving  a  copy  at  defendant's  place 

36  Hickey  v  Stone,  60  111.,  458.  Mo.,  533,  39  S.  W.,  799,  60  Am.  St 
But  see,  as  to  the  effect  of  a  sher-  Rep.,  565;  Missouri,  K.  &  E.  R.  Co 
iff's  return  of  service  of  process,  in  Hoereth,  144  Mo.,  136,  45  S.  W. 
an  action  to  enjoin  a  judgment  for  1085.  In  these  cases  it  is 
want  of  service,  Krug  v.  Davis,  85  held  that  an  execution  upon  a  jus 
Ind.,  309.  tice's   judgment    will    not     be     en- 

37  Blakeslee  v.  Murphy,  44  Conn.,  joined  because  of  want  of  service 
188;  Grand  Tower  Mining  Co.  v  of  process,  since  the  defendant 
Schirmer,  64  111.,  106;  Grass  v.  may  have  adequate  relief  at  law, 
Hess,  37  Ind.,  193;  Nicholson  v.  either  by  motion  in  the  justice 
Stephens,  47  Ind.,  185;  Wagner  'V.  court  to  stay  execution,  or  by  ap- 
Shank,  59  Md.,  313;  Ryan  v.  Boyd,  peal  or  certiorari.  And  see  Mas- 
33  Ark.,  778.  See,  contra,  Gates  v.  terson  v.  Ashcom,  54  Tex.,  324. 
Lane,  49  Cal.,  266;  Luco  v.  Brown,  ^s  Grand  Tower  Mining  Co.  v. 
73  Cal.,  3,  14  Pac,  366;  Galveston,  Schirmer,  64  111.  106;  McNeill  v. 
H.  &  S.  A.  R.  Co.  V.  Ware,  74  Tex.,  Edie,  24  Kan.,  108;  San  Juan  &  St. 
47,  11  S.  W.,  918;  Texas-Mexican  L.  M.  &  S.  Co.  v.  Finch,  6  Col.,  214. 
R.  Co.  V.  Wright,  88  Tex.,  346,  31  -•'  Blakeslee  v.  Murphy,  44  Conn., 
S.   W.,   613,   31    L.   R.   A.,   200;    St.  188. 

Louis  &  S.  F.  R.  Co.  v.  Lowder,  138 


224  INJUNCTIOXS.  [ciIAl'.  HI. 

of  residence,  in  accordance  with  the  laws  of  the  state,  will  not 
be  enjoined,  when  defendant  might  have  had  ample  remedy 
at  law,  of  which  he  failed  to  avail  himself.^o 

§  229  a.  Defense  to  action  on  w^hich  judgment  founded. 
Upon  the  question  whether  it  is  necessary  for  one  who  seeks 
to  enjoin  a  judgment  as  being  void  for  want  of  service  of 
process,  to  show  that  he  has  a  good  defense  to  the  action  in 
which  the  judgment  was  rendered,  the  earlier  cases  displayed 
the  same  remarkable  conflict  of  authority  which  characterizes 
the  whole  subject  of  injunctions  against  void  judgments.  Upon 
the  one  hand,  it  was  held  that,  since  the  judgment  was  void, 
no  presumption  would  be  indulged  in  favor  of  the  judgment 
creditor,  and  relief  was  freely  granted  regardless  of  the  ques- 
tion of  defense.  Upon  the  other  hand,  it  was  held  that,  even 
though  the  judgment  was  absolutely  void,  the  party  aggrieved 
was  not  entitled  to  relief  unless  he  could  show  that  the  final 
result  would  be  changed.  The  more  recent  decisions,  however, 
have  set  the  question  at  rest,  and  it  may  now  be  stated  as  a 
rule,  supported  by  the  great  weight  of  authority,  that,  even 
though  the  judgment  be  entirely  void  for  want  of  proper 
service  of  process,  relief  will  not  be  granted  unless  the  com- 
plainant can  show  that  he  has  a  valid  defense  to  the  claim 
upon  which  the  judgment  was  founded.  The  rule  as  thus  an- 
nounced is  not  only  supported  l)y  the  decided  weight  of  au- 
thority but  seems  more  in  accovd  with  the  fundamental  prin- 
ciples which  govern  courts  of  equity  in  granting  equitable  re- 
lief against  the  enforcement  of  judgments."*^   .4    fortiori  does 

^'>  Hurlbut  r.  Thomas,  55  Conn.,  miller,  20  C.  C.  A.,  274,  74  Fed.,  23; 

181,  10  Atl.,  556.  Rice  r.  Tobias,  83  Ala.,  348,  3  So., 

41  Winters    v.    Means,     25     Neb.,  670;   S.  C,  89  Ala.,  214,  7  So.,  765; 

241,  41  N.  W.,  157;    State  v.  Hill,  Raisin   Fertilizer  Co.   r.  McKenna, 

50    Ark.,    458,    8   S.   W.,   401,   over-  114  Ala.,   274,   21  So.,  816;    Gifford 

ruling   upon   this   point     Ryan     v.  r.  Morrison,  37  Ohio  St.,  502;  Sharp 

lioyd,    33    Ark.,    778;     Stewart     v.  r.   Schmidt,  62  Tex.,  263;    dicta  in 

Brooks,  62  Miss.,  492;    Newman  v.  Gerrish  v.   Hunt,  66  Iowa,  682,   24 

Taylor,  69  Miss.,  070,   13  So.,  831;  N.  W.,  274  and  Gerrish   r.  Seaton. 

:iassachusetts  U.    !..  Assn.   r.   Loh-  73   Iowa,  15,  34   N.  W.,  485.     And 


VllM'.  lll.j 


AGAINST   JUDGMEXTS. 


225 


the  rule  apply  where  the  judgment  is  merely  voidable  as  the 
result  of  minor  irregularities  in  the  service  of  process."*-  Nor 
will  equity  enjoin  a  judgment  because  of  service  which  is 
merely  defective  as  distinguished  from  that  which  is  entirely 
void,  when  it  is  not  shown  that  the  party  complaining  was  in 
any  manner  misled  by  such  defect.^-"' 

§  230.     Tendency  toward  adoption  of  test  as  to  remedy  at 

law.  While  the  discussion  of  this  branch  of  the  preventive 
jurisdiction  of  equity  as  applied  to  void  judgments,  as  shown 
in  the  preceding  sections,  has  demonstrated  a  remarkable  con- 
flict of  authority  upon  the  right  to  relief  by  injunction  in  such 
cases,  the  prevailing  tendency  of  the  courts  seems  toward  the 
establishment  of  the  simple  test  in  such  cases,  of  whether  ade- 


see  Handley  c.  Jackson,  31  Ore, 
552,  50  Pac,  915,  65  Am.  St.  Rep., 
839.  Contra,  Blakeslee  v.  Murphy, 
44  Conn.,  188;  Ridgeway  v.  Bank, 
11  Humph.,  523;  Bell  v.  Williams, 
1  Head,  229;  Mills  r.  Scott,  43  Fed., 
452.  In  Kern  Barber  S.  Co.  v. 
Freeze,  96  Tex.,  513,  74  S.  W.,  303, 
the  court  make  the  distinction  be- 
tween the  case  where  the  fact  of 
the  void  service  of  process  does 
not  appear  upon  the  face  of  the 
record  of  the  judgment  and  the 
case  where  it  does  so  appear,  hold- 
ing that  in  the  latter  case,  where 
it  does  not  depend  upon  evi- 
dence aliunde,  the  enforcement 
of  the  judgment  will  be  enjoined 
without  any  showing  of  a  meri- 
torious defense.  And  under  a 
statute  providing  that  only  so 
much  of  any  judgment  shall  be 
enjoined  as  complainant  shall  show 
that  he  is  equitably  not  bound  to 
pay,  a  judgment  rendered  before  a 
justice  of  the  peace  will  not  be  re- 
15 


strained  for  want  of  service  of  pro- 
cess when  complainant  shows  no 
legal  or  equitable  defense  to  the 
action.  Colson  y.  Leitch,  110  III., 
504.  In  Bankers  Life  Ins.  Co.  v. 
Robbins,  53  Neb.,  44,  73  N.  W.,  269, 
it  was  held  that  the  court  should 
not  go  into  the  merits  of  the  com- 
plainant's alleged  defense  further 
than  to  determine  that  a  prima 
facie  defense  is  presented.  And  it 
may  well  be  questioned  whether  an 
exception  to  the  rule  as  announced 
in  the  text  should  not  be  recog- 
nized where  the  void  judgment 
bi^s  been  rendered  by  a  court  be- 
yo'nd  the  jurisdiction  of  complain- 
ant's domicile;  otherwise  he  is 
compelled  to  submit  his  defense  to 
a  court  which,  without  his  volun- 
tary appearance,  could  never  ac- 
quire jurisdiction  over  him. 

•42  Tootle  r.  Ellis,  63  Kan.,  422. 
65  Pac,  675,  88  Am.  St.  Rep.,  246, 

■i"-  Hale  r.  McComas,  59  Tex.,  484. 


226  INJUNCTIONS.  [chap.  III. 

quale  remedy  exists  at  law  for  the  protection  of  the  judgment 
debtor  against  the  void  judgment.  Where  such  remedy  exists, 
either  by  appeal,  certiorari,  application  to  the  court  itself 
which  rendered  the  judgment,  or  in  any  other  legal  and  ade- 
quate manner,  no  satisfactory  reason  is  perceived  why  equity 
should  depart  from  the  universal  rule  of  withholding  its  ex- 
traordinary aid  to  redress  a  grievance  which  is  remediable  at 
law.  Upon  the  other  hand,  where  no  adequate  or  complete 
relief  may  he  had  at  law  in  the  usual  and  accustomed  methods 
of  procedure,  it  is  equally  difficult  to  conceive  of  any  satisfac- 
tory reason  for  withholding  relief  by  injunction,  since  the  in- 
jury resulting  from  an  absolutely  void  judgment  would  be 
otherwise  irreparable.  And  while  the  decisions  of  the  courts 
are,  as  is  already  shown,  far  from  being  reconcilable,  even  upon 
this  simple  and  reasonable  test,  it  is  believed  that  the  tendency 
is  towards  its  ultimate  adoption  as  the  true  solution  of  this 
vexed  question.^^ 

§231.  Injunction  against  sale  under  execution;  remedy  at 
law  the  test.  Where  the  injunction  is  sought  to  restrain  a 
sale  of  one's  property  under  an  execution  issued  upon  a  judg- 
ment alleged  to  be  void,  the  determining  question  is  as  to  the 
existence  of  a  satisfactory  legal  remedy.  And  if,  in  such 
cases,  full  relief  may  be  had  by  applying  to  the  court  from 
which  the  execution  issued,  to  have  it  quashed,  the  injunction 
will  be  refused,  especially  when  it  is  not  shown  that  the  per- 
sons seeking  to  enforce  the  execution  are  insolvent  or  unable 
to  respond  in  damages  at  law."*^  Nor  will  the  enforcement 
of  an  execution  be  enjoined  upon  the  ground  that  the  judg- 
ment and  execution  do  not  follow  the  declaration  and  verdict 
and  are  therefore  void,  when  the  person  aggrieved  has  had  an 
opportunity  of  obtaining  relief  at  law,  of  which  he  did  not 

■••«  In  West  Virginia  this  test  has  535;    Connery  r.  Swift,  9  Nev.,  39. 

been   adopted.         Railway    Co.    v.  See    also    Wordehoff   i'.    Evers,    18 

Ryan,   31    West   Va.,   364,    6   S.    E.,  Fla.,    339.      But    see,    contra,    Her- 

924,   ].'}  Am.  S<.  Rep.,  865.  nandez  v.  James,  23  La.  An.,  483. 

*■■  Stockton    r.    Raipom,    CO     TIo.. 


CHAP.  III.]  AGAINST   JUDGMENTS.  227 

properly  avail  himself.'**^  And  when  it  is  sought  to  restrain 
a  sale  of  land  under  execution  upon  the  ground  that  the  judg- 
ment is  void,  it  is  not  sufficient  to  allege  its  invalidity  in 
general  terms,  but  the  facts  should  be  specifically  set  forth.'*'^ 
It  is  held,  however  that  creditors  who  have  instituted  an 
action  by  attachment  against  their  debtor  and  have  levied 
upon  his  personal  property,  may  enjoin  a  sheriff  from  selling 
the  same  property  under  a  prior  judgment  and  execution 
against  the  same  debtor,  which  are  void  for  want  of  juris- 
diction in  the  court  over  the  person  of  the  defendant,  the 
relief  being  allowed  under  such  circumstances  because  of  the 
absence  of  any  adequate  legal  remedy.^^  And  the  fact  that 
plaintiff  in  an  execution  is  actually  dead  at  the  time  of  issuing 
the  execution  in  his  name  affords  sufficient  ground  for  enjoin- 
ing its  enforcement.^^  So  where  an  execution  issues  in  the 
name  of  a  judgment  creditor  who  is  dead,  without  being  prop- 
erly indorsed  in  the  manner  required  by  statute  in  such  cases, 
the  execution  is  regarded  as  invalid,  and  a  sale  thereunder 
may  be  enjoined.^^ 

§  231  a.    Effect  of  void  judgment  on  statute  of  limitations. 

Where  a  judgment  is  void,  as  for  want  of  proper  service  of 
process,  the  fact  of  its  rendition  does  not  stop  the  running 
of  the  statute  of  limitations  against  the  cause  of  action  upon 
which  it  was  founded. ^^ 

46  Leonard  v.  Collier,  53  Ga.,  387.         40  Daily  v.  Wynn,  33  Tex.,  614. 

47  Dumbould  v.  Rowley,  113  Ind.,         so  Meek  v.  Bunker,  33  Iowa,  169. 
353,  15  N.  E.,  463.  si  Kern  Barber  S.  Co.  v.  Freeze, 

■  48  Wood  V.    Stanberry,    21    Ohio     96  Tex.,  513,  74  S.  W.,  303. 
St.,  142. 


228  INJUNCTIONS.  [chap.  III. 

VI.     Judgments  upon  UsupvIOUs  Contracts. 

§  232.     Judgments   not  usually  enjoined   because  of  usury. 

233.  Exceptions  to   the   rule. 

234.  Judgment   debtor  only  can   take  advantage  of  usury. 

§  232.  Judgments  not  usually  enjoined  because  of  usury. 
Although  courts  of  equity  and  of  law  both  have  jurisdiction 
in  matters  of  usury,  yet  where  a  cause  has  been  submitted  to 
the  legal  forum  and  there  decided,  equity  will  not  afterward 
relieve  against  the  judgment  in  the  absence  of  any  special 
circumstances  of  fraud,  or  complicated  and  embarrassing  facts 
with  which  the  usury  is  connected.^  And  the  fact  that  de- 
fendant in  the  action  at  law  upon  the  usurious  contract  has 
had  an  opportunity  to  defend  on  the  ground  of  usury,  of 
which  he  has  failed  to  avail  himself,  will  estop  him  from  re- 
lief in  equity,  no  fraud  or  misconduct  being  shown  on  the 
part  of  plaintiff  at  law.^  And  unless  complainant  tenders 
the  amount  of  principal  and  interest  actually  due,  after  de- 
ducting the  amount  alleged  to  be  usurious,  he  is  not  entitled 
to  relief,  since  he  Avho  seeks  equity  must  himself  do  equity. ^ 

§  233.  Exceptions  to  the  rule.  Notwithstanding  the  rule  as 
above  stated  is  well  established,  and  equity  will  rarely  inter- 
fere upon  the  ground  of  usury  Avhere  an  opportunity  has  been 
neglected  of  asserting  such  defense  at  law,  yet  there  may  be 
cases  surrounded  with  such  peculiar  circumstances  as  to  render 
a  court  of  law  an  inconvenient  tribunal,  and  thus  compel  a  re- 
sort to  equity.  And  where  the  I'emedy  at  law  is  attended  with 
embarrassment  and  difficulty,  the  transaction  involving  a  large 
number  of  contracts  and  being  exceedingl.y  complex  in  its  na- 
ture in  consequence  of  the  devices  resorted  to  foi-  the  purpose 

1  Lindsley  o.  James,  3  Cold.,  477.     4'.);     Morgan    r.    England,    Wright, 

2  Buchanan  v.  Nolin,  3  Humph.,  11::!:  Walker  r.  Gurley,  83  N.  C, 
03;    McKoin   r.   Cooley.   3    Humph..     429. 

559;  Lansing/'.  Eddy,  1  Johns.  Ch.,         -  Neurath   r.   Hecht,  62  Md.,  221. 


CHAT.  111. J  AGAINST    JIDGMEXTS.  229 

of  concealing  the  nsui-y,  a  (;ourt  of  equity  may  properly  in- 
terfere.* And  relief  has  been  granted  against  judgments  by 
confession,  upon  the  ground  of  usury.-'* 

§  234.    Judgment  debtor  only  can  take  advantage  of  usury. 

The  defense  of  usui-y  is  regarded  as  in  the  nature  of  a  per- 
sonal privilege,  to  be  pleaded  only  by  the  debtor  himself 
at  his  option,  and  the  courts  will  not  attempt  in  behalf  of 
one  creditor  to  enjoin  a  judgment  recovered  by  another  cred- 
itor against  the  common  debtor,  in  the  absence  of  fraud.  The 
judgment  debtor  having  had  his  day  in  court,  and  not  hav- 
ing seen  fit  to  interpose  the  defense  of  usury  in  his  own  behalf, 
equity  Avill  not  permit  his  other  creditors  to  open  up  the  trans- 
action and  to  enjoin  the  collection  of  the  judgment  upon  the 
ground  that  the  debtor  had  paid  usurious  interest,  when  no 
fraud  is  shown  in  the  transaction  as  against  them.*' 

■*  Frierson  o.  Moody,  3  Humph.,  '' Phillips  v.  Walker,  48  Ga.,  55; 
561;  Chester  v.  Apperson,  4  Heisk..  Gatewood  v.  City  Bank  of  Macon, 
639.  49  Ga.,  45. 

5  Hill  V.  Reifsnider,  46  Md.,  555; 
Ennis  v.  Ginn,  5  Del.  Ch.,  180. 


230  INJUNCTIONS.  [chap.  III. 


VII.     Of  Judgments  upon  Gaming  Contracts. 

§  235.     Courts  inclined  to  enjoin  judgments  on  gaming  contracts. 
236.     Defense  should  usually  be  made  at  law. 

§  235.  Courts  inclined  to  enjoin  judgments  on  gaming  con- 
tracts. Where  the  consideratioii  for  the  contract  on  which 
the  action  at  law  is  founded  was  money  lost  at  gaming, 
and  judgment  is  obtained  against  defendant,  courts  of  equity 
are  inclined  to  be  somewhat  more  liberal  in  the  exercise  of 
their  restraining  jurisdiction  than  in  ordinary  cases,  and  upon 
considerations  of  public  policy  and  the  necessity  of  the  pre- 
vention of  gaming  they  will  generally  restrain  proceedings 
under  the  judgment.'  Thus,  where  defendant  in  an  action 
upon  a  gaming  contract  was  prevented  by  surprise  from  mak- 
ing his  defense  available  at  law,  equity  will  afford  relief,  even 
though  he  made  no  effort  to  obtain  a  new  trial  at  law.^  So 
equity  will  relieve  against  a  judgment  based  upon  a  promis- 
sory note,  a  part  of  the  consideration  of  which  was  money 
loaned  for  gambling  purposes.^  Nor  will  the  fact  that  the 
gaming  contract  has  been  assigned  for  value  to  an  innocent 
holder,  ignorant  of  the  origin  of  the  contract,  prevent  equity 
from  aft'ording  relief  against  the  judgment,  where  gaming  is 
prohibited  by  statute,  even  though  no  defense  was  interposed 

'  White  V.  Washington,  5  Grat.,  opportunity   to   defend   himself   at 

645;    Woodson    v.    Barrett,   2    Hen.  law.       Whereas   in   the   case   of  a 

&  M.,  80;    Skipwith  v.  Strother,  3  gaming  promise  or  security  he  is 

Rand.,  214.  Contra,  Smith  v.  Kem-  under  no  such  obligation.     And  as 

merer,  152  Pa.  St.,  98,  25  Atl.,  165.  he  may  at  first  waive  all  defense 

s  White  r.  Washington,  5  Grat.,  at  law  and  seek  relief  in  equity,  so 
645.  And  it  is  said  by  the  court  in  when  he  is  prevented  by  surprise 
this  case  that  "The  case  of  a  gam-  from  making  his  defense  available 
ing  promise  or  security  is  an  ex-  at  law,  he  is  not  bound  to  pursue  it 
ception  to  the  general  rule  on  the  further  in  that  forum,  but  may  re- 
subject,  that  rule  being  derived  sort  to  equity." 
from  the  obligation  of  the  party  in  "  Emerson  r.  Townsend,  73  Md., 
most  cases  to  avail  himself  of  his  224,  20  Atl.,  984. 


CHAP.  III.]  AGAINST   JUDGMENTS.  281 

at  law.^*'  In  such  case  the  circulation  of  gaming  contracts  or 
securities  is  considered  an  evil  of  equal  magnitude  with  giv- 
ing them,  and  one  which  authorizes  the  interference  of  equity 
by  enjoining  proceedings  under  the  judgment.^^ 

§  236.  Defense  should  usually  be  made  at  law.  Although, 
as  we  have  seen,  courts  of  equity  are  inclined  to  look  favor- 
ably upon  applications  for  relief  against  judgments  obtained 
upon  gaming  contracts,  yet  they  are  loth  to  depart  from  the 
principle  of  refusing  to  interfere  where  no  defense  was  at- 
tempted at  law.  And  it  is  held  that  a  note  given  for  a  gam- 
ing consideration,  being  absolutely  void  in  itself,  full  and 
adequate  defense  may  be  made  at  law,  and  a  court  of  equity 
will  refuse  to  relieve  where  there  was  no  attempt  at  such 
defense.i2  And  in  the  absence  of  any  excuse  for  not  having 
defended  at  law  upon  a  bond  given  for  money  lost  in  gam- 
ing, the  judgment  will  not  be  enjoined.^^ 

10  Woodson  v.  Barrett,  2  Hen.  &  tion,  an  injunction  already  granted 
M.,  80;  Skipwitli  v.  Strother,  3  will  not  be  dissolved,  but  will  be 
Rand.,  214.  retained  until  an  issue  at  law  can 

11  Woodson  V.  Barrett,  2  Hen.  &  determine  the  fact. 

M.,  80.     But  see  Nelson's  Adm'r  v.  12  Giddens  v.  Lea,  3  Humph.,  133. 

Armstrong,  5  Grat,  354,  where  it  is  And  see  Owens  v.  Van  Winkle  G. 

held  that  in   case  of  doubt  as  to  &  M.  Co.,  96  Ga.,  408,  23  S.  E.,  416. 

whether  the  judgment  creditor  to  31  L.  R.  A.,  767. 

whom    the    debt    was    transferred  is  Jones  v.  Jones,  N.  C.  Term  R., 

took   it  in   ignorance  that   it  was  110. 

founded  upon  a  gaming  considera- 


232  IN  JUNCTIONS.  [chap.  hi. 


VIII.     Set-offs. 

§  237.  Judgments  not  usually  enjoined  because  of  set-offs.  i 

238.  Damages  recoverable  at  law  no  ground   for   relief. 

239.  Equitable  set-offs  ground   for  relief. 

240.  Injunction  allowed  when  defense  of  set-off  prevented  by  fraud. 

241.  Ignorance  of  set-off,  when  ground  for  injunction;  partial  set-off. 

242.  Unsettled   account;    definite   amount   should    be   shown;    set-off 

acquired  after  Verdict  not  allowed. 

243.  Effect  of  insolvency  of  judgment  creditor. 

244.  Set-off  reduced  to  judgment  ground  for  injunction;   equity  con- 

siders real  parties  in  interest.  , 

§  237.  Judgments  not  usually  enjoined  because  of  set-offs. 
While  the  authorities  are  not  wholly  tmiforni  upon  the  ques- 
tion of  the  right  to  enjoin  judgments  at  law  upon  the  ground 
of  set-off,  yet  the  Aveight  of  atithority  unmistakably  sustains 
the  proposition  that  a  set-off  which  may  be  pleaded  at  law  does 
not,  of  itself,  warrant  an  injunction  against  a  jttdgment.  And 
in  accordance  with  the  general  principle  that  equity  will  not 
interfere  wiiere  there  is  ample  remedy  at  law  and  where  a 
court  of  law  has  first  obtained  jurisdiction  of  the  stibject-mat- 
ter,  a  judgment  will  not  usually  be  enjoined  upon  the  ground 
of  oft'-sets  which  might  have  been  interposed  in  defense  of 
the  legal  action. ^     And  where  there  is  no  allegation  in  the  bill 

1  Hendrickson  /;.  Hinckley,  17  of  law,  may  be  relied  upon  to  en- 
How.,  443;  Rives  i\  Rives,  7  join  a  judgment,  even  where  it 
Rich.  Eq.,  353;  Cummins  r.  Bent-  was  not  pleaded  at  law  and  no 
ley,  5  Ark.,  9;  George  r.  Strange,  excuse  is  offered  for  not  pleading 
10  Grat.,  499;  Winchester  r.  Gros-  it  there.  And  in  Chicago,  D.  &  V. 
venor,  48  111.,  517;  Cook  r.  Mur-  R.  Co.  r.  Field.  86  111.,  270,  it  is 
phey,  7  Gill  &  J.,  282;  Halcomb  ;•.  held,  in  opposition  to  the  doctrine 
Kelly,  57  Tex.,  618;  Twigg  r.  Hop-  of  the  text,  that  the  case  of  set- 
kins,  85  Md.,  301,  37  Atl.,  24.  But  offs  presents  an  exception  to  the 
see,  contra,  Hughes  r.  McCoun,  3  general  rule  denying  relief  by  in- 
Bibb,  254,  where  it  is  held  that  a  junction  against  judgments  upon 
set-off,  being  matter  of  equitable  grounds  which  might  have  been 
as  well  as  legal  jurisdiction,  and  urged  in  defense  of  the  action  at 
not  specially  cognizable  in  a  court  law.     And  the  exception  is  said  to 


CHAP.  111. J  AGAINST   JUDGMENTS.  233 

that  the  person  aggrieved  was  prevented  from  using  his  set- 
off in  the  action  at  hiw  by  some  unavoidable  occurrence,  or 
that  he  possessed  no  other  evidence  by  which  to  establish  his 
set-oft'  than  the  testimony  of  the  opposite  party,  an  injunction 
will  not  be  allow^ed.-  So  a  sale  under  a  judgment  -will  not 
be  enjoined  upon  the  ground  of  set-off,  w^hen  the  alleged  set- 
oft'  is  wholly  independent  of  and  has  no  connection  wath  the 
cause  of  action  upon  which  the  judgment  was  rendered,  and 
when  it  is  not  show-n  that  the  judgment  creditor  is  insolvent.^ 
Nor  will  equity  restrain  proceedings  under  a  judgment  on 
the  ground  of  a  set-oft'  in  respect  to  distinct  and  unconnected 
debts,  in  the  absence  of  any  other  circumstances  calling  for 
the  aid  of  the  court. ^  And  where  a  court  of  law,  having  full 
jurisdiction  of  the  subject-matter  and  having  fully  considered 
the  case,  has  refused  to  allow  a  set-oft",  equity  wdll  not  after- 
ward assume  jurisdiction  and  restrain  the  judgment.^ 

§  238.  Damages  recoverable  at  law  no  ground  for  relief. 
Claims  for  damages  sustained  by  breach  of  warranty  on  the 
sale  of  property  and  for  money  loaned,  which  might  have 
been  set  oft'  in  defense  of  an  action  at  law,  aft'ord  no  ground 
for  restraining  proceedings  under  the  judgment  in  the  absence 
of  fraud,   accident   or   mistake.''      So,   too,   damages   resulting 

rest  upon  the  fact  that  statutes  of  case,  says:  "Where  courts  of  law 
set-off  are  not  imperative,  but  only  and  equity  have  concurrent  juris- 
permissive,  and  defendant  is  not  diction  over  a  question  and  it  re- 
bound to  set  off  his  demand  against  ceives  a  decision  at  law,  equity  can 
plaintiff's  action.  His  failure,  no  more  re-examine  it  than  the 
therefore,  to  plead  his  set-off  at  courts  of  law,  in  a  similar  case, 
law  will  not,  it  is  held,  prevent  could  re-examine  a  decree  of  the 
him  from  maintaining  a  bill  in  court  of  chancery.  *  *  *  i^  i.c 
equity  to  enjoin  the  judgment  the  unfitness  and  vexation  and  in- 
upon  the  ground  of  set-off.  decorum  of  permitting  a  party  to 

•-  Cummins  r.  Bentley,  5  Ark.,  9.  go   on  successively  by  way  of   ex- 

'■'-  Baker   r.    Ryan,    67    Iowa,    708.  periment  from  one  concurrent  tri- 

25  N.  W.,  890.  bunal    to   another  and   thus   to   in 

*  Dade   o.   Irwin's   Ex'r,   2   How.,  roduce   conflicting  decisions,    that 

383.  prevents   the  second   inquiry." 

^'  Simpson  i\  Hart,  1  Johns.  Ch.,  "  Winchester  r.  Grosvenor.  48  111.. 

91.    Kent,  Ch.,  in  pa<=:sing  upon  th'^  517. 


234  INJUNCTIONS.  [chap.  III. 

from  the  wrongful  attachment  of  one's  property  do  not  au- 
thorize an  injunction  against  the  judgment,  since  ample  rem- 
edy exists  at  law  by  proceedings  upon  the  attachment  bond.''' 

§  239.  Equitable  set-offs  ground  for  relief.  As  regards  set- 
offs which  are  purely  equitable  in  their  nature,  in  distinc- 
tion: from  strictly  legal  set-offs,  it  would  seem  that  they  need 
not  be  pleaded  at  law,  and  defendant  who  has  not  urged 
them  in  defense  of  the  action  may,  after  judgment  obtained, 
come  into  equity  and  restrain  the  judgment  on  establishing 
his  equitable  set-offs.^  So  an  equitable  set-off  which  the  judg- 
ment debtor  could  not  have  pleaded  under  the  rules  of  law 
in  defense  of  the  action  may  entitle  him  to  an  injunction 
against  the  enforcement  of  the  judgment,  when  the  judgment 
creditor  is  insolvent.  And  the  injunction  may  be  allowed 
under  such  circumstances,  even  as  against  assignees  of  the 
judgment,  since  they  stand  in  no  better  position  than  the 
original  judgment  creditor  himself,  and  are  subject  to  the 
same  equities.^  So  proceedings  under  a  judgment  will  be  re- 
strained upon  the  ground  of  an  equitable  set-off,  even  though 
for  unliquidated  damages,  where  the  one  against  whom  it  is 
claimed  is  a  non-resident  and  insolvent.^*'  But,  notwithstand- 
ing this  apparent  exception  to  the  general  rule,  a  judgment 
will  not  be  enjoined  upon  the  ground  of  other  transactions 
between  the  parties  upon  which  there  is  possibly  an  equitable 
set-off." 

§  240.  Injunction  allowed  when  defense  of  set-off  prevented 
by  fraud.  Although  equity  will  not,  as  we  have  seen,  en- 
join proceedings  under  a  judgment  on  the  ground  of  set-off 

"  Winchester  v.  Grosvenor,  48  111.,  See   also    Railroad    v.     Greer,    87 

517.  Tenn.,  698,  11  S.  W.,  931. 

«  Richmond  &  S.  R.  Co.  v.  Ship-        m  North  Chicago  Rolling  Mill  Co. 

pen,    2    Pat.    &   H.,    327;     Hall     v.  v.  St.  Louis  Ore  and  Steel  Co.,  152 

Hickman,  2  Del.  Ch.,  318.  But  see  U.    S.,   596,   14    Sup.   Ct.  Rep.,  710, 

Hudson  V.  Kline,  9  Grat.,  379.  reversing,  S.  C,  39  Fed.,  308. 

»  Marshall  v.  Cooper,  43  Md.,  46.         u  Parks  r.  Spurgin,  3  Ired.  Eq., 

153. 


CHAP.  III.]  AGAINST   JUDGMENTS.  235 

where  the  defendant  has  neglected  to  avail  himself  of  the 
opportunit}'  to  defend  at  law,  yet  if  through  fraud,  collu- 
sion, or  other  improper  conduct  of  the  plaintiff,  he  has  been 
induced  to  omit  his  defense,  the  judgment  may  be  enjoined, 
defendant  in  the  action  at  law  having  been  guilty  of  no  laches 
on  his  part.^2  Thus,  where  a  judgment  was  obtained  in  viola- 
tion of  a  written  agreement  that  complainant's  set-off  should 
be  credited  on  the  note  in  suit  and  that  the  suit  itself  should 
be  dimissed,  an  injunction  has  been  allowed.^^  And  where 
defendant  in  the  action  at  law  has  a  good  off-set  to  the  de- 
mand, of  which  he  was  prevented  from  availing  himself  by 
the  fraud  and  collusion  of  plaintiffs,  unmixed  with  negligence 
or  laches  of  his  own,  a  bill  alleging  these  facts  is  not  demurrable 
for  want  of  equity-^"* 

§  241.  Iterance  of  set-off,  when  ground  for  injunction ; 
partial  set-off.  Ignorance  may  sometimes  afford  sufficient  ex- 
cuse for  not  having  pleaded  the  set-off  in  defense  of  the  suit  at 
law.  And  where  a  judgment  has  been  recovered  against  an 
administrator,  who  afterward  discovers  set-offs  and  credits  to 
which  his  intestate  was  entitled,  but  of  whose  existence  de- 
fendant was  wholly  ignorant  at  the  time  of  trial,  equity  will 
enjoin  proceedings  under  the  judgment.^ ^  But  a  partial  set-  ■ 
off  against  a  judgment  will  not  justify  a  court  in  enjoining  the 
entire  amount  of  the  judgment.!*^  And  when  an  injunction  is 
granted  because  of  a  set-off  which  is  less  than  the  whole  amount 
of  the  judgment,  it  should  be  with  the  proviso  that  the  judg- 

12  Allen  V.  Medill,  14  Ohio,  445;  although  defendant  is  prevented  by- 
Davis  V.  Tileston,  6  How.,  114;  unavoidable  accident  from  avail- 
Dickenson  v.  McDermott,  13  Tex.,  ing  himself  of  off-sets  in  defense  of 
248.  the  action  at   law,   he   is  still  not 

13  Dickenson  v.  McDermott,  13  entitled  to  enjoin  the  judgment, 
Tex.,   248.  but  must  pursue  his  remedy  at  law 

1^  Davis  V  Tileston,  6  How.,  114.  for  the  recovery  of  his  demands. 

i"'  Terrill  v.  Southall,  3  Bibb,  458.  is  Palfrey  v.  Shuff,  2  Mart.  N.  S., 

But  see,   contra.   Hudson   r.  Kline,  51. 
9  Grat.,  379,  where  it  is  held  that. 


236  INJUNCTIONS.  [chap.  III. 

ment  creditor  may  proceed  by  execution  to  collect  the  undis- 
puted balance  of  his  judgment.^" 

§  242.  Unsettled  account ;  definite  amount  should  be  shown ; 
set-off  acquired  after  verdict  not  allowed.  The  mere  existence 
of  cross  demands  is  not  of  itself  sufficient  to  constitute  an 
equitable  set-off,  or  to  warrant  an  injunction,  and  a  court  of 
equity  will  not  on  the  ground  of  an  open  and  unsettled  ac- 
count between  the  parties,  restrain  a  judgment  creditor  from 
profiting  by  his  judgment.^ ^  And  it  is  error  to  enjoin  the 
enforcement  of  a  judgment  upon  the  ground  of  an  alleged 
set-off  or  counter  claim  when  no  precise  or  definite  amount 
is  shown  to  be  due  thereon.^-'  And  a  set-oft'  or  counter  de- 
mand ac(iuired  after  verdict,  although  greater  than  the  amount 
of  the  verdict,  will  not  authorize  an  injunction  against  the 
proceedings,  since  it  would  be  manifestly  unjust  that  plain- 
tiff should  be  delayed  or  hindered  in  obtaining  the  benefit  of 
his  verdict  by  interposing  a  claim  not  yet  established  at  law.-<^ 

§  243.  Effect  of  insolvency  of  judgment  creditor.  The  ques- 
tio-n  of  whether  the  insolvency  of  the  judgment  creditor  will,  of 
itself,  justify  an  injunction  against  the  enforcement  of  a  judg- 

1^  Hodges    /•.    Planters     Bank,    7  verdict,  the  defendant  acquires  for 

Gill  &  J.,  306;    Levy  /;.  Steinbach,  the     first     time     a     cross    demand 

43  Md.,  212.  against  the  plaintiff,  he    can    not, 

isRawson  r.  Samuel,  1  Cr.  &  Ph.,  for  that  reason,  by  any  proceeding 

161.     See  also  Hewitt  c.  Kuhl,   10  at  law,  defeat  or  delay  the  plain- 

C.    E.    Green,     24;      Townsend     (,'.  tiff  from  the  benefit  of  his  verdict. 

Quinan,  36   Tex.,  548.  It  is  not  reasonable  that  a  cross  de- 

lyPaison  v.  Mcllwaine,  72  N.  C,  mand   thus  subsequently  acquired. 

312.  should  delay  the  plaintiff  from  the 

20  Whyte  V.  O'Brien,    1    Sim.    &  benefit    of    his    verdict,    until    the 

Stu.,  551.         "The  question,"  says  validity  of   this   demand   is  ascer- 

Vlce     ■  Chancellor        Leach,         "is  tained   by   a   second   trial;    and   in 

whether  a  bill  of  this  kind  can  be  this   case   equity    must   follow   the 

maintained.     At  law,  where  a  de-  law.     Equitable  set-off  is  where  by 

fendant  claims  a  set-off,  the  truth  reason  of  the  nature  of  the  cross 

of  his  claim  comes  to  be  tried  at  demand,  there  can  be  no  set-off  at 

the   same   time   with    the    demand  law.    Here   the   demand    is    purely 

raised  by  the  action,  and  is  decided  legal." 
liy   the  .same  verdict.    If,  after  the 


CHAP.  HI.]  AGAINST    JUDGMENTS.  237 

ment  at  law,  upon  the  ground  of  set-off,  especially  when  the  set- 
off is  of  such  a  nature  that  it  might  have  been  pleaded  at  law, 
is  one  upon  which  there  has  been  some  conflict  of  judicial 
opinion.  The  affirmative  of  the  proposition  has  been  broadly 
asserted,  and  it  has  been  held  that  such  insolvency  affords 
sufficient  reason  for  enjoining  the  judgment,  although  the  set- 
oft'  was  of  such  a  character  that  it  might  have  been  urged  in 
defense  of  the  suit  at  law.-^  And  where  the  judgment  cred- 
itor is  indebted  to  the  judgment  debtor  largely  in  excess  of 
the  judgment  which  he  has  obtained  against  him,  and  refuses 
to  allow  his  judgment  to  be  set  off  against  such  indebted- 
ness, it  has  been  held  proper  to  enjoin  the  judgment,  upon 
the  ground  that  its  enforcement  under  such  circumstances 
would  be  unconscientious  and  a  violation  of  moral  duty.22 
Upon  the  other  hand,  it  has  been  held  that  insolvency  of  the 
judgment  creditor  will  not,  alone,  warrant  an  injunction 
against  proceedings  under  a  judgment  on  account  of  a  set-off 
which  might  have  been  urged  in  defense  of  the  original  ac- 
tion.-•''  Disregarding  the  unsettled  condition  of  the  authorities 
upon  this  point,  the  true  doctrine,  upon  principle,  would  seem 
to  be  that  while  insolvency  of  itself  rarely,  if  ever,  justifies 
the  granting  of  an  injunction  in  any  case,  it  is  j^et  an  important 
factor  to  be  considered  in  this  class  of  cases,  and  may  with 
other  grounds  of  equitable  relief  justify  the  interposition  of 
the  extraordinary  process  of  injunction. 

§244.     Set-off  reduced  to  judgment  ground  for  injunction; 
equity  considers  real  parties  in  interest.    In  those  cases  where 

-1  Levy  i:  Steinbach,  43  Md.,  212;  was  urged  as  a  defense  to  the  ac- 

Jarrett   v.   Goodnow,   39   West  Va.,  tion  at  law. 

602,  20  S.  E.,  575,  32  L.  R.  A.,  321;  ^•■!  Rives    r.    Rives,    7    Rich.    Eq., 

dictum   in   Twigg    r.    Hopkins,    85  353;    Sayre's  Adm'r  r.  Harpold,  33 

Md.,  301,  37  Atl.,  24.     See  Lindsay  West  Va.,  553,  11  S.  E.,  16;  Zinn  v. 

r.  Jackson,  2  Paige,  581.  Dawson,  47  West  Va.,  45,  34  S.  E,. 

22  Payne  v.  Loudon,  1  Bibb,  518.  784,  81  Am.  St.  Rep.,  772.    But  see, 

But  it  does  not    appear    from    the  contra.  Jarrett  v.  Goodnow,  39  West 

case    reported    whether    the    set-off  Va.,  602,  20  S.  E.,  575,  32  L.  R.  A., 

321. 


238  INJUNCTIONS.  [CIIAP.  III. 

the  set-off  which  is  urged  as  the  foundation  for  relief  by  in- 
junction has  been  reduced  to  judgment  stronger  ground  is 
afforded  for  the  interference  sought,  and  in  such  cas.s  it  is 
regarded  as  proper  to  grant  the  injunction. ^^  And  where  a 
judgment  debtor,  himself  having  an  unsatisfied  judgment 
against  his  creditor,  files  a  bill  to  set  off  the  one  judgment 
against  the  other,  alleging  that  his  judgment  creditor  is  in- 
solvent and  that  he  will  be  remediless  if  the  judgment  is  per- 
mitted to  be  enforced  against  him,  and  praying  an  injunction 
to  prevent  such  enforcement  and  a  decree  of  set-off,  the  bill  is 
not  demurrable  for  want  of  equity.-^  And  since  the  jurisdic- 
tion exercised  by  courts  of  equity  over  matters  of  set-off  is 
somewhat  broader  than  that  of  courts  of  law,  equity  may  in 
cases  of  the  nature  under  discussion  look  beyond  the  nominal 
to  the  real  parties  in  interest  and  may  give  relief  accordingly. 
It  will  not,  therefore,  permit  a  cestui  que  trust  who  is  in- 
solvent to  enforce  and  collect  through  his  trustee  a  judgment 
against  one  who  himself  holds  a  valid  judgment  against  the 
cestui  que  trust  which  he  is  powerless  to  collect  if  the  set- 
off be  denied,  and  such  attempted  collection  will  be  enjoined 
in  a  suit  to  off-set  the  one  judgment  against  the  other.-^  In- 
dependently, however,  of  circumstances  of  the  nature  above  dis- 
closed, equity  will  not  ordinarily  enjoin  the  enforcement  of  a 
judgment  upon  a  bill  seeking  to  off-set  certain  judgments 
against  each  other  when  the  judgments  are  not  between  the 
same  parties.^'^ 

'^i  Williams   v.   Davies,     2     Sim.,        '-'o  Hobbs    v.    Duff,    23    Cal.,    596. 
461.  See  S.  C,  43  Cal.,  485. 

25  Tommy  v.  Ellis,  41  Ga.,  260.  27  Boley  v.  Griswold,  2  Mont.,  447. 


CHAP.  III.]  AGAINST   JUDGMENTS.  239 


IX.     Judgments  as  Affecting  Title 

§  245.    Judicial  sales  not  enjoined  for  irregularity  in  proceedings. 

246.  Sale  of  property  on  execution  against  a  third  person. 

247.  Exception  to  the  general  rule. 

247a.  No   injunction  upon   grounds   available  at   law. 

248.  Equity  will  interfere  to  prevent  a  cloud  upon  title. 

249.  But  not  if  title  is  good  upon  its  face. 

250.  Failure  of  title  a  ground  of   injunction  against  judgment  for 

purchase  money. 

251.  Mere  apprehensions  of  possible  failure  not  sufficient. 

252.  Fraud  and  improper  conduct  of  judgment  creditor. 

253.  Writs  of  restitution  and  possession. 

254.  Judgment  in  another  county;   ejectment  by  mortgagee. 

255.  Prior  lien;   growing  crops. 

256.  Surety  in   replevin  bond;   purchaser  of  surety's  land. 

257.  Of  parties. 

258.  When  injunction  retained  to  hearing;  garnishees  under  attach- 

ment proceedings. 

259.  Excessive  levy;   time  of  sale  unpropitious. 

260.  Judgment  for  possession. 

261.  Sale  under  fraudulent  judgments  enjoined;  inaccurate  descrip- 

tion no  ground  for  injunction. 

262.  Buildings   erected   by   debtor  on   creditor's  land;    mortagee   of 

farming  utensils  and  crops. 

263.  When  judgment  for  purchase  money  enjoined. 

264.  Voluntary  assignment;  sale  of  debtor's  real  estate  not  enjoined. 
264a.  Sale  under  execution  from   foreign  court. 

§  245.  Judicial  sales  not  enjoined  for  irregularity  in  proceed- 
ings. The  aid  of  equity  is  not  infrequently  sought  for  the 
purpose  of  enjoining  proceedings  under  judgments  at  law 
against  the  real  estate  of  the  judgment  debtor.  With  reference 
to  such  cases,  it  is  to  be  remarked,  in  the  first  instance,  that 
a  sale  of  real  estate  under  legal  process  will  not  be  restrained 
on  account  of  defects  and  irregularities  in  the  proceedings  by 
which  judgment  was  obtained,  but  some  actual  injury  or  ap- 
prehension of  injury  must  be  shown^  Nor  will  equity  inter- 
pose to  prevent  the  enforcement  of  judgments  rendered  against 

1  Morgan  v.  Whiteside's  Curator,  14  La.,  277;  Ewing  v.  St.  Louis,  5 
Wal.,  413. 


240  INJUNCTIONS.  [CIIAI'.  III. 

complainant  for  the  amount  of  alleged  benefit  to  his  property 
by  the  opening  of  certain  streets,  because  of  irregularities  in 
the  proceedings,  the  remedy  being  at  law,  and  equity  having 
no  disposition  to  restrain  the  proceedings  of  inferior  tribunals 
of  special  jurisdiction. - 

§  246.  Sale  of  property  on  execution  against  a  third  person. 
Upon  the  general  principle  that  courts  of  equity  will  not  en- 
tertain jurisdiction  where  ample  remedy  exists  at  law,  an  in- 
junction will  not  be  allowed  against  a  sale  of  property  levied 
upon  in  satisfaction  of  an  execution  against  a  person  other  than 
the  owner  of  the  property .^  And  a  judgment  debtor  can  not 
enjoin  the  creditor  from  levying  his  execution  upon  real  estate 
belonging  to  a  third  person,  who  is  not  a  party  to  the  suit 
and  who  does  not  himself  seek  for  the  relief,  there  being  ample 
remedy  at  law  for  any  injury  which  he  may  sustain.*  A  dis- 
tinction, however,  is  taken  between  the  case  where  complain- 
ants are  owners  of  the  legal  and  where  they  are  owners  of 
the  equitable  title  to  the  property  about  to  be  sold;  since  in 
the  case  of  legal  ownership  the  remedy  at  law  is  sufficient, 
but  where  the  title  is  merely  equitable,  courts  of  law  are  pow- 

2  Ewing  r.  St.  Louis,  5  Wal.,  413.  trine."      See   also   Mayor    r.    Mese- 

Mr.    Justice    Field,    delivering   the  role,   26    Wend.,    132,    reversing    S. 

opinion  of  the  court,  says:    "With  C,    8     Paige,  .  198;      Heywood     v. 

the     proceedings     and     determina-  Buffalo,  4  Kearn.,  534. 

tions  of   inferior   boards   or   tribu-  ^  Freeman  v.  Elmendorf,  3  Halst. 

nals  of  special  jurisdiction,  courts  Ch.,   475,   affirmed   on   appeal,    lb., 

of  equity  will  not  interfere  unless  655;    Watkins   r.   Logan,   3    Monr., 

it  should  become  necessary  to  pre-  21;   Bouldin  v.  Alexander,  7  Monr., 

vent  a  multiplicity  of  suits  or  ir-  425;    Coughron   r.    Swift,     18     111., 

reparable    injury,    or    unless    the  414;  Henderson  r.  Morrill,  12  Tex., 

])roceeding   sought  to   be   annulled  1;    Carlin  v.  Hudson,  lb.,  202;  Hall 

or  corrected  is  valid  upon  its  face,  v.  Davis,  5  J.  J.  Marsh.,  290.     But 

and  the  alleged  invalidity  consists  see,  contra,  Brummel  r.  Hurt,  3  J. 

in  matters  to  be  estabished  by  ex-  J.  Marsh.,  709;   Downing  r.  Mann, 

trinsic  evidence.       In  other  cases.  43  Ala.,  266;    Bach  r.  Goodrich,  9 

the   review  and   correction   of  the  Rob.  (La.),  391;  Scobey  r.  Walker, 

proceedings    must    be    obtained   by  114  Ind.,  254,  15  N.  E.,  674. 

the  writ  of  certiorari.     This  is  the  'Tompkins    v.   Tremlin,    49    Ga., 

general   and   well   established   doc-  460. 


CHAP.  III.  I  AGAIXST  JUDCM  KNTS.  241 

erless  to  alt'ord  the  necessary  i-elict',  and  ('(|uit\-  will  entertain 
jurisdiction  to  restrain  llie  sale.'' 

§  247.  Exception  to  the  general  rule.  Xotwitlistanding'  the 
general  rule  as  above  laid  down,  it  lias  been  held  that  the 
grantor  of  real  estate  with  covenants  of  warranty  has  such  an 
interest  in  restraining  a  sale  of  the  land  under  a  judgment 
against  a  former  owner,  alleged  to  have  been  paid,  as  to  make 
him  a  proper  party  to  apply  for  an  injunction.''  But  the  pur- 
chaser of  lands  can  not  restrain  their  sale  under  a  judgment 
obtained  by  fraud  against  his  grantor,  without  showing  af- 
firmatively that  he  will  be  injured  thereby.'' 

§  247  a.  No  injunction  upon  grounds  available  at  law.  In 
accordance  with  the  general  principle  that  equity  Avill  not  re- 
lieve where  there  is  ample  redress  at  law,  an  injunction  will 
not  be  granted  to  restrain  the  enforcement  of  a  judgment 
directing  the  sale  of  real  estate,  where  the  relief  is  sought  upon 
grounds  which  might  have  been  urged  as  a  defense  to  the  pro- 
ceeding in  which  the  judgment  was  rendered.'^ 

§  248.  Equity  will  interfere  to  prevent  a  cloud  upon  title. 
Courts  of  equity  frequently  enjoin  proceedings  under  judg- 
ments for  the  prevention  of  a  cloud  upon  title,  and  this  would 
seem  to  follow,  by  analogy,  from  the  "well  settled  and  recog- 
nized jurisdiction  of  equity  to  remove  clouds  upon  title.  Since, 
if  the  court  may,  for  the  purpose  of  preventing  litigation  and 
expense,  entertain  jurisdiction  for  the  removal  of  a  cloud  upon 
title,  it  is  difficult  to  perceive  any  substantial  reason  why  the 
same  jurisdiction  may  not  be  exercised  to  prevent  such  a  cloud. 
And  it  may,  therefore,  be  laid  down  as  a  general  rule  that 
a  sale  of  real  estate  under  execution,  which  will  not,  at  law, 
confer  any  title  on  the  purchaser,  and  whose  only  effect  will 
be  to  east  a  cloud  upon  the  title  of  a  bona  fide    purchaser, 

•^' Orr   ('.   Pickett,  3  J.   J.  Marsh.,  f  Riicker  v.  Langford,    138    Cal., 

269.  611,    71    Pac.    1123;    Alexander    v. 

<i  McCulloch  r.  Hollingsworth,  27  Fransham,  26  Mont.,  496,  68  Pac, 

Ind.,  115.  94.5. 

•7  Marriner  r.  Smith,  27  Cal.,  649. 
16 


242  INJUNCTIONS.  [CIIAI'.  III. 

may  be  enjoined.^  Nor  in  the  application  of  the  rule  will 
it  avail  against  the  issuing  of  an  injunction  that  the  levy  was 
made  only  upon  the  right,  title  and  interest  of  the  complain- 
ant.io 

§  249.  But  not  if  title  is  good  upon  its  face.  The  exercise 
of  the  jurisdiction  of  equity  to  prevent  a  cloud  upon  title 
■proceeds  upon  the  assumption  that  the  title  of  the  person  com- 
plaining, being  shown  as  it  appears  of  record,  the  cloud  to 
be  removed  or  prevented  is  apparently  a  good  title  against  that 
of  complainant,  though  in  reality  defective  by  reason  of  facts 
dehors  the  record.  An  injunction  will,  therefore,  not  be  al- 
lowed to  restrain  a  sale  under  a  judgment  in  foreclosure  to 
prevent  the  establishment  or  assertion  of  a  title  which  can 
only  be  shown  to  be  prima  facie  good  by  leaving  complain- 
ant's title  out  of  consideration.^^  So  if  the  invalidity  which 
is  charged  to  be  a  cloud  upon  the  title  appears  upon  the  face 
of  the  record  itself,  as  in  the  case  of  an  award  for  the  partition 
of  lands  which  is  invalid  upon  its  face,  equity  will  not  inter- 
fere to  set  it  aside.^-  As  between  two  judgment  creditors, 
where  the  prior  creditor  has  received  full  payment  and  satis- 
faction of  his  judgment,  but  still  attempts  to  enforce  execu- 
tions thereunder  to  the  prejudice  of  the  junior  creditor,  such  a 
cloud  is  thereby  thrown  upon  the  title  to  the  debtor's  estate 
as  will  authorize  an  injunction  in  behalf  of  the  junior  judg- 
ment creditor. 13 

§  250.  Failure  of  title  a  ground  of  injunction  against  judg- 
ment for  purchase  money.     Failure  or  want  of  title  is  fre- 

9  Christie  v.  Hale,   46   111.,    117;  for  a  general  discussion  of  the  sub- 

Pettit   V.   Shepherd,   5   Paige,  493;  ject. 

Key   C.  G.  L.   Co.    v.    Munsell,  19  lo  Key  C.  G.  L.  Co.  v.  Munsell,  19 

Iowa,     305;     Bank     of     U.     S.     v.  Iowa,  305. 

Schultz,    2    Ohio,    505;     Norton    v.  n  Moore   v.   Cord,   14   Wis.,    213; 

Beaver,  5  Ohio,  178;  King  v.  Clay,  Gamble  r.  Loop,  14  Wis.,  465. 

34  Ark.,   291.     See  also  Bishop  r.  i-^  Meloy   r.   Dougherty,   16  Wis., 

Moorman,-  98    Ind.,    1.       But    see.  269. 

contra,  Coughron  v.  Swift,  18  111..  i^'  Shaw  r.  Dwight,  16  Barb.,  536. 
414.     And  see,  post,  §    372  et  seq. 


CHAP.  III.]  AGAINST   JUDGMENTS.  243 

qnently  relied  upon  as  the  foundation  for  an  injunction  against 
proceedings  under  a  judgment  to  enforce  the  collection  of  the 
purchase  money  of  real  estate,  and  a  complete  failure  of  title 
is  in  some  cases  regarded  as  ground  for  an  injunction.  And 
where  the  vendor  has  stripped  himself  of  all  title  to  the 
premises,  either  legal  or  equitable,  and  is  in  no  condition  to 
comply  with  his  contract  to  convey,  neither  he,  nor  his  as- 
signees standing  in  his  stead,  will  be  allowed  to  recover  the 
purchase  money,  and  a  judgment  therefor  will  be  perpetually 
enjoined.i^  So  where  three  tracts  of  land  were  sold,  the  title 
proceeding  from  three  different  sources,  one  of  which  entirely 
failed,  there  being  no  such  tract  in  existence,  and  the  other 
tract  proved  deficient  in  amount,  a  judgment  for  the  purchase 
money  was  enjoined  to  the  extent  of  the  deficiency  in  the 
land.i'^  And  a  distinction  is  taken  between  a  mere  deficiency  in 
quantity  and  the  absolute  non-existence  of  the  real  estate  con- 
veyed ;  for,  while  the  relief  might  be  denied  in  the  former 
case,  the  latter  is  sufficient  to  authorize  an  injunction.!*^  But 
where  the  vendor,  in  addition  to  his  failure  to  give  possession 
of  part  of  the  property  at  the  time  stipulated,  has  utterly  failed 
to  make  any  conveyance  of  the  property,  an  injunction  will 
issue.! '^ 

§  251.  Mere  apprehensions  of  possible  failure  not  sufficient. 
To  warrant  the  exercise  of  the  jurisdiction  in  restraint  of  judg- 
ments for  purchase  money,  mere  apprehensions  of  a  possible 
failure  of  title  will  not  suffice,  especially  where  complainant  is 
still  in  possession  of  the  premises.!^  And  he  who  comes 
into  equity  for  relief  against  a  judgment  for  unpaid  purchase 
money  must  himself  be  free  from  negligence.  Thus,  where  a 
purchaser  has  neglected,  during  the  life-time  of  the  vendor,  to 
pay  the  purchase  money  and  obtain  a  conveyance,  he  will  not 

14  Buchanan  v.  Lorman,  3  Gill.,  i«  Strodes  v.  Patton,  1  Marsh. 
51.  Dec,  228. 

15  Strodes  v.  Patton,  1  Marsh.  i'  Hllleary  v.  Crow,  1  Har.  &  J., 
Dec,  228.  542. 

1*  Truly  V.  Wanzer,  5  How.,  141. 


244  INJUNCTIONS.  [CHAIMH. 

be  allowed  to  enjoin  the  judgment  because  of  the  difficulty  of 
obtaining  title  from  the  infant  heirs  of  the  vendor,  whom  he 
has  not  made  parties  to  his  billJ^  And  where  a  judgment  for 
purchase  money  is  enjoined  until  the  grantor  perfects  his  title 
and  the  injunction  is  then  dissolved,  damages  should  not  bo 
allowed  against  complainant.-'* 

§  252.  Fraud  and  improper  conduct  of  judgment  creditor. 
Fraud  and  negligence  on  the  i)art  of  the  judgment  creditor 
in  the  enforcement  of  his  lien  against  the  property  of  his 
debtor  may,  under  certain  circumstances,  create  an  equity  suf- 
ficient to  warrant  an  injunction  against  further  proceedings 
under  the  judgment.  Thus,  where  parties  have  stipulated  in 
writing  that  they  will  not  enforce  their  judgment  lien  against 
certain  real  estate  of  the  judgment  debtor,  and  afterward,  in 
violation  of  their  agreement,  attempt  its  enforcement,  they 
will  be  restrained  by  injunction.^i  So  where  the  judgment 
creditor  may  collect  his  judgment  from  property  that  his 
debtor  has  not  conveyed,  but  refuses  or  neglects  so  to  do,  he 
will  be  enjoined  from  proceeding  to  enforce  his  judgment  out 
of  property  which  has  passed  to  the  grantee  of  his  debtor,  and 
as  to  which  the  creditor  has  waived  his  lien.22  And  a  subse- 
quent bona  fide  purchaser  may  enjoin  a  sale  of  premises  where 
the  lien  created  by  statute  in  favor  of  the  judgment  creditor 
has  expired  by  lapse  of  time  without  sale  being  had.-^  Equity 
wall  not,  however,  enjoin  a  judgment  creditor  from  enforc- 
ing his  execution  out  of  lands  of  the  debtor,  in  the  hands  of 
a  purchaser,  merely  on  the  ground  of  delay  in  the  enforcement 
of   the   judgment,    the   lien   not   having   expired.^* 

§  253.  Writs  of  restitution  and  possession.  In  general  the 
enforcement  of  a  legal  right  will  not  be  enjoined  in  equity,  ex- 
cept upon  a  eleai-  showing  of  m  right  supcM'ior  to  that  which  it 

i»  Front  r.  (libson.  1  Cranch  C  ^'  Reily  r.  Miami  E.  Co..  fi  Ohio, 
C,  389.  333. 

-"I  Fislil)ack  r.  William.s,  3  Bibb,         -- Huni   r.   Eaton.  28    111.,   122. 
342.  -•■'  Riggin  v.  Mulligan.  4  Gilm..  50 

■ii  Wagner  r.  Pegues,  10  S.  C.  259 


(IIAP.  I1I.|  AGAINST    .JUDGMENTS.  245 

is  sought  to  enjoin.  Therefore  a  ])erson  in  possession  of  real 
estate  without  lej^al  title,  has  not  sufficient  equities  as  against 
the  legal  owner  to  entitle  him  to  an  injunction  against  a  writ 
of  restitution  w^hich  has  been  awarded  the  legal  owner  for  the 
purpose  of  obtaining  possession  of  his  premises.^f*  But  a  per- 
petual injunction  will  be  allowed  to  restrain  the  execution  of 
a  writ  of  hahcrc  facias  jwssessioiiem  against  complainant's  real 
estate  when  he  was  not  a  part.y  to  the  litigation.-^'  In  general, 
however,  questions  of  title  being  properly  triable  at  law,  equity 
will  not  interfere  to  restrain  a  sale  of  real  estate  under  execu- 
tion, the  title  to  which  is  in  dispute,  but  will  leave  the  parties 
to  pursue  their  remedy  in  a  legal  forum.-" 

§  254.    Judgment  in  another  county ;  ejectment  by  mortgagee. 

The  existence  of  a  judgment  in  another  county  against  the 
same  defendant  as  garnishee  will  not  Avarrant  an  injunction  to 
prevent  the  judgment  creditors  from  obtaining  their  money 
by  a  sale  of  mortgaged  premises  under  a  decree  in  foreclosure 
against  the  defendant,  since  he  is  not  entitled  to  an  injunction 
against  the  collection  of  the  money  under  the  decree,  unless 
he  alleges  satisfaction  of  the  judgment  in  the  other  county.-^ 
Nor  will  a  court  of  equit}-  before  a  hearing  enjoin  a  mortgaged 
who  has  recovered  judgment  in  ejectment  for  the  mortgaged 
premises  from  proceeding  with  an  execution  on  his  judgment.-*^ 
Where,  however,  a  judgment  creditor  is  attempting  to  enforce 
his  judgment  by  a  sale  of  real  estate  conveyed  in  trust  by 
the  judgment  debtor  before  the  debt  was  incurred,  an  injunc- 
tion may  be  granted  against  the  proceedings  until  the  ques- 
tion of  whether  the  trust  was  created  in  fraud  of  creditors  is 
settled.30 

^■"'  Boinay  v.  Coats,  17  Mich.,  411.  to    the    Court   of   Errors   and     Ap- 

-'•  Goodnough  v.  Sheppard,  28  111.,  peals,  lb.,  655. 

81;  AViliiamson  v.  Russell,  IS  West  -«  Dunham  r.  Collier,    1    Greene 

Va.,  612.  Howa),  54. 

-"  Freeman      v.     Elmendorf,       3  ^''  Todd  r.  Pratt,  1  Har.  &  J.,  465. 

Halst.  Ch.,  475,  affirmed  on  appeal  -o  McCann  r.  Taylor,  10  Md.,  418. 


246  INJUNCTIONS,  [chap.  III. 

§  255.  Prior  lien ;  growing  crops.  One  who  holds  a  prior  lien 
on  lands  can  not  enjoin  a  subsequent  judgment  creditor  from 
attempting  the  enforcement  of  his  judgment  by  execution ;  and 
this  for  the  reason  that  a  sale  under  such  execution  would  not 
defeat  or  impair  the  prior  lien,  but  would  leave  it  in  the  same 
condition  as  if  such  sale  had  never  taken  place.^^  But  pur- 
chasers at  a  foreclosure  sale,  being  entitled  to  the  then  grow- 
ing crops,  may  restrain  the  creditors  of  the  mortgagor  from 
proceeding  under  execution  to  levy  upon  such  crops,  the  doc- 
trine of  emblements  having  no  application  to  purchasers  under 
a  foreclosure.^- 

§  256.    Surety  in  replevin  bond;  purchaser  of  surety's  land. 
A  surety  in  a  replevin  bond  is  not  entitled  to  an  injunction  to 
prevent  the  levy  of  an  execution  on  his  own  property  until  that 
of  his  principal  shall  have  been  levied  upon,  such  proceeding 
for  the  purpose  merely  of  saving  the  property  of  the  surety  by 
compelling  a  levy  upon  that  of  the  principal  being  regarded  as 
without  the  sanction  of  either  principle,  practice  or  authority .^^ 
Upon  the  other  hand,  it  is  held  that,  where  a  judgment  has 
been  procured  against  the  principal  and  his  surety,  a  purchaser 
of  the  surety's  land,  upon  which  the  judgment  was  a  lien,  may 
enjoin  the  sale   of  the  land  until  the  property  of  the  prin- 
cipal has  first  been  subjected  to  the  payment  of  the  judgment.^* 
§  257.     Of  parties.     A  commissioner  in  chancery  may,  in  a 
proper  case,  be  restrained  from  executing  a  sale  of  lands  under 
a  decree,  he  being  regarded  as  a  sheriff  under  the  same  cir- 
cumstances.35    But  the  court  will  not,  in  an  injunction  against 
a  decree,  inquire  into  the  rights  of  parties  existing  antecedent 
to  the  rendering  of  the  decree,  and  which  might  have  been 
inquired  into  at  that  time.^'"' 

yi  Union  Bank  v.  Poultney,  8  Gill  -'  Hill  v.   Crowley,  55  Ark.,  450. 

&  J.,  324.  18  S.  W.,  540. 

32  Crews  V.  Pendleton,    1    Leigh.  ■'■■'  People,  etc.  v.  Gilmer,  5  Gilm., 

297.  242. 

••••'  Kilpatrick   r.  Tunslall,  5  J.  .T.  ■■■>'  Id. 
Marsh.,  80. 


CHAP.  III.]  AGAINST   JUDGMENTS.  247 

§  258.  When  injunction  retained  to  hearing ;  g-arnishees 
under  attachment  proceedings.  When  an  injunction  is  sought 
to  restrain  the  sale  of  real  estate  under  execution,  which 
it  is  claimed  was  released  by  a  written  agreement  from 
the  lien  of  the  judgment,  but  the  terms  of  the  agree- 
ment are  doubtful  and  the  affidavits  upon  the  motion  for  the 
injunction  are  conflicting,  it  is  proper  to  retain  the  injunc- 
tion to  the  hearing,  especially  when  the  proceedings  in  equity 
will  have  the  result  of  quieting  the  title  and  preventing  a 
multiplicity  of  suits  by  one  final  decree.-"'^  Where,  however,  an 
attaching  creditor  releases  the  land  attached  from  the  lien  of 
his  judgment  upon  the  payment  of  a  given  sum  of  money  by 
strangers  to  the  action,  such  payment  being  made  not  as  a 
payment  upon  the  judgment,  but  to  procure  the  release  of  the 
land  from  such  lien,  garnishees  under  the  attachment  pro- 
ceeding are  not  thereby  entitled  to  enjoin  the  enforcement  of 
executions  against  them  as  garnishees.^^ 

§259.  Excessive  levy;  time  of  sale  unpropitious.  A  judg- 
ment debtor  is  not  entitled  to  an  injunction  to  prevent  the 
sale  of  his  real  estate  under  execution  because  the  sheriff  has 
levied  upon  property  whose  value  is  largely  in  excess  of  the 
amount  of  the  judgment,  and  because  the  debtor  has  other  prop- 
erty amply  sufficient  to  satisfy  the  execution,  when  it  is  not 
shown  that  the  debtor  pointed  out  such  other  property  to  the 
sheriff,  and  when  the  bill  itself  fails  to  point  out  such  other 
property.^'^''  Nor  does  the  fact  that  the  time  of  sale  is  un- 
propitious and  that  financial  affairs  are  stringent  constitute 
sufficient  ground  for  equitable  interference  by  injunction 
against  a  sale  of  real  estate  under  a  judgment  at  law.-**^ 

§  260.  Judgment  for  possession.  A  defendant  in  an  action 
of  forcible  entry  and  detainer,  against  whom  judgment  is  ren- 

37  Kendall   r.   Dow,  46  Ga.,   607.  See  also  Muller  r.  Bayly,  21  Grat., 

38  Hlller  r.  Cotte-     54  Miss.,  551.  521;  Caperton  v.  Landcraft,  3  West 

39  Smith  ;■:  Frederick,  32  Tex.,  Va.,  540;  Miller  v.  Parker,  73 
256.  N.  C,  58. 

4oPoullain  r.  English,  57  Ga.,  492. 


248  iNJuxcTioxs.  [chap.  hi. 

dered,  can  not  have  an  injunction  to  prevent  the  issuing  and 
execution  of  an  order  of  removal,  merely  upon  the  ground  that 
he  proposes  to  appeal  from  the  judgment  within  the  time  fixed 
by  law,  when  he  has  not  already  appealed. ^^  And  where  a 
judgment  for  the  delivery  of  possession  of  real  property  has 
already  been  enforced  and  the  successful  party  is  in  posses- 
sion thereunder,  it  is  too  late  to  enjoin  the  enforcement  of  the 
judgment;  and  in  such  case  equity  will  not  interfere  by  in- 
junction  //(   limine  to  restore  possession  of  the  property. ^- 

§  261.  Sale  under  fraudulent  judgments  enjoined ;  inaccur- 
ate description  no  ground  for  injunction.  The  aid  of  an  injunc- 
tion may  be  properly  invoked  to  prevent  a  sale  of  real  prop- 
erty under  judgments  which  have  been  fraudulently  recovered. 
And  a  purchaser  at  a  former  sale  under  several  executions  may 
enjoin  a  sale  of  the  same  lands  under  an  execution  issued 
upon  a  fraudulent  judgment,  even  though  one  of  the  execu- 
tions under  which  complainant  claims  Avas  issued  upon  such 
fraudulent  judgment.  Under  such  circumstances  it  is  regarded 
as  proper  to  enjoin  the  attempt  of  the  creditor  having  the 
fraudulent  judgment  to  sell  the  land  a  second  time,  such  relief 
being  essential  for  the  protection  of  the  interest  acquired  by 
the  purchaser  at  the  former-  sale.'*^  But  a  sale  of  real  estate 
under  execution  will  not  be  enjoined  merely  because  of  inaccur- 
acies and  insufficiencies  in  the  description  of  the  premises  to 
be  sold,  since  if  the  description  is  insufficient  there  can  be  no 
valid  sale  and  plaintiff  can  not  be  injured. ^^ 

§262.  Buildings  erected  by  debtor  on  creditor's  land; 
mortgagee  of  farming  utensils  and  crops.  Where  a  judgment 
debtor   lijis  ci-ccted   ])uildings  upon  llic   land   of  his  judgment 

"  Curd   /•.  Farrar,    17   Iowa,  504.  Land  Co.  r.  Turman,  53  Tex.,  619. 

As  to  the  right  of  a  third    person  i-  Kamm  r.  Stark,  1  Sawy.,  547. 

purchasing    the    legal    title    to    re-  *■'  Ragland   v.  Cantrell,    49    Ala., 

strain  the  enforcement  of  a  judg-  294. 

ment  in  forcible  entry  and  detainer  "  Henderson  r.  Hoy,  26  La.  An., 

by  an  insolvent  landlord  against  a  156;    Deville  /•.   Hayes,  23  La.  An., 

tenant  of  the  premises,  see  Texas  550. 


CHAP.  III.]  AGAINST   JUDGMENTS.  249 

ci'editors,  he  can  not  enjoin  the  creditors  from  selling  such 
buildings  under  execution. ^^  But  the  owner  of  farming  lands, 
Avho  has  a  mortgage  upon  the  stock  and  utensils  of  his  tenant, 
as  well  as  upon  the  interest  of  the  tenant  in  the  crops  being 
raised  thereon,  has  been  allowed  an  injunction  to  prevent  a 
sale  under  execution  against  the  tenant  of  his  equity  in  the 
property  thus  mortgaged,  the  relief  being  extended  upon  the 
ground  of  irreparable  injury  and  the  difficulty  of  estimating 
the  damages  at  law  which  would  result  from  permitting  such 
sale.*6 

§  263.  When  judgment  for  purchase  money  enjoined.  It 
is  also  held,  Avhere  a  creditor  is  seeking  to  enforce  his  judg- 
ment by  a  sale  of  land  subject  to  the  lien  of  the  judgment, 
but  which  has  been  conveyed  by  the  debtor  to  a  purchaser 
who  is  in  possession,  not  having  paid  all  the  purchase  money, 
and  the  creditor  also  obtains  judgment  in  garnishee  proceedings 
against  the  purchaser  for  the  unpaid  purchase  money,  that  it 
is  inequitable  to  permit  him  to  enforce  both  judgments  at  one 
and  the  same  time.  And  a  court  of  equity  may,  therefore, 
prevent  by  injunction  the  enforcement  of  the  judgment  in  the 
garnishee  proceedings.^''' 

^264.  Voluntary  assignment;  sale  of  debtor's  real  estate 
not  enjoined.  Under  a  statute  regulating  the  subject  of  volun- 
tary assignments  for  the  benefit  of  creditors,  and  which  re- 
quires the  recording  of  the  assignment  in  order  to  vest  the 
title  to  the  property  in  the  assignee,  a  sale  of  the  debtor's 
real  estate  under  judgments  which  are  a  lien  thereon,  and 
Avhich  are  recovered  after  the  execution  of  the  assignment, 
but  before  it  is  recorded,  will  not  be  enjoined. ^"^ 

§  264  a.  Sale  under  execution  from  foreign  court.  Inas- 
much as  the  process  of  a  court  can  have  no  extra-territorial 

*■'  Augustin  V.  Dours,  26  La.  An.,  warrant  an   injunction  to  restrain 

261.  the    enforcement    of     a    judgment 

•»«  Martin  r.  Jewell,  37  Md.,  .530.  against   a    garnishee,    Freeman     v. 

•»■  Gunn  V.  Thornton,  49  Ga.,  380.  Miller,   53    Tex. 


970 


(  -. 


And    see,    as    to    facts    which    will         ^^  New   r.  Reissner,  56  Ind.,  118. 


250  INJUNCTIONS.  [chap.  III. 

effect,  where  an  execution  is  issued  from  a  court  beyond  the 
jurisdiction  where  it  is  sought  to  be  enforced  and  has  been 
levied,  by  an  officer  of  the  court  in  which  the  judgment  was 
rendered,  upon  real  estate  of  the  judgment  debtor  located 
beyond  the  jurisdiction  of  that  court,  the  act  of  the  officer 
is  void  and  the  sale  of  the  land  under  such  execution  will  be 
enjoined.^^ 

49  Needles  v.  Frost,  2  Okla.,  19,    35  Pac,  574. 


CHAP.  III.]  AGAINST   JUDGMENTS.  251 


X.     Court  in  which  the  Judgment  was  Rendered. 

§  265.     Cases    of    concurrent    jurisdiction;    of    inferior    and    superior 
courts. 

266.  Non-interference  between  state  and  federal  courts. 

267.  State  court  may  enjoin  interference  with  judgment  of  federal 

court. 

268.  Federal  courts  decline  to  enjoin  judgments  of  state  courts. 
268a.  Exception  to  rule. 

269.  When  enforcement  of  judgment  of  another  state  enjoined. 

270.  Decree  in  equity,  doctrine  as  to  enjoining. 

271.  Injunction  has  no  extra-territorial  effect. 

272.  Injunction  not  allowed  against  proceedings  in  attachment  for 

contempt,  nor  against  mandamus  proceedings. 

§265.  Cases  of  concurrent  jurisdiction;  of  inferior  and 
superior  courts.  Questions  of  importance  frequently  arise 
touching  the  relative  jurisdiction  and  powers  of  the  court  in 
which  the  judgment  is  obtained  and  of  that  in  which  it  is 
sought  to  be  enjoined.  In  so  far  as  courts  of  law  and  equity 
have  concurrent  jurisdiction  over  the  same  matters,  a  party 
seeking  relief  may  make  his  election  in  which  tribunal  he  will 
bring  his  action.^  And,  in  this  country,  where  law  and 
equity  are  usually  administered  by  the  same  court,  as  a  gen- 
eral rule  one  court  will  not  interfere  with  or  enjoin  the  judg- 
ment or  process  of  another  court  of  concurrent  jurisdiction 
which  is  competent  to  grant  the  necessary  relief;  since  the 
proceedings  should,  in  such  cases,  be  instituted  in  the  court 
which  renders  the  judgment  or  decree  and  which  has  con- 
trol over  its  execution,  when  that  court  has  power  to  grant 
the  desired  relief.-     Nor,  in  such  case,  does  the  circumstance 

1  Conway  v.  Ellison,  14  Ark.,  360.  Stein  v.  Benedict,  83  Wis.,  603,  53 

sPlatto  V.  Deuster,  22  Wis.,  482;  N.     W.,     891;      Grant   v.   Quick,   5 

Endter    v.    Lennon,    46    Wis.,    299,  Sandf.,  612;  Anthony  v.  Dunlap,  8 

50    N.   W.,    194;    Orient    Insurance  Cal.,    26;    Rickett   v.   Johnson,   lb., 

Co.  V.    Sloan,   70   Wis.,    611,   36   N.  35;    Chipman  v.  Hibbard,  lb.,  268; 

W..    388;    Cardinal    v.   Eau   Claire,  Gorham  v.  Toomey,  9  Cal.,  77;  Uhl- 

L.  Co.,  75  Wis.,  404,  44  N.  W.,  761;  f elder   v.   Levy,    lb.,   607;    Crowley 


252  INJUNCTIONS.  [chap.  III. 

that  the  judge  of  the  court  in  which  the  judgment  which 
it  is  sought  to  enjoin  was  rendered  is  disqualified  to  sit  in 
the  case  constitute  an  exception  to  the  rule,  and  the  injunc- 
tion should  still  be  sought  in  the  court  in  which  the  jugdment 
was  rendered,  and  the  case  should  proceed  as  any  other  case 
in  which  the  judge  is  disqualified  to  sit.^  So  an  inferior  court 
will  not,  in  general,  enjoin  the  proceedings  of  its  superior 
court,  since  this  would  be  to  make  the  inferior  paramount  to 
the  superior  tribunal.*  If,  however,  the  mandate  or  order  of 
the  superior  court  has  been  improperly  or  surreptiously  ob- 
tained, its  enforcement  may  be  enjoined  by  an  inferior  tribunal 
Avhenever  the  judgment  or  decrees  of  an  inferior  court  would 
be  enjoined  upon  similar  grounds.^  And  a  court  of  equity, 
though  not  a  court  of  last  resort,  may  restrain  the  execution 
of  a  decree  of  su6h  court  where  it  satisfactorily  appears  that 
the  decree  has  been  satisfied,  and  where,  notwithstanding  such 
satisfaction,  the  person  in  Avhose  favor  the  decree  was  obtained 
is  proceeding  to  enforce  it  by  execution.*^ 

§  266.     Non-interference  between  state  and  federal  courts. 

The  principles  which  govern  courts  of  equity  powers,  either 

V.  Davis,  37  Cal.  268;    Flaherty  v.  joined,  the  suit  for  the  injunctioa 

Kelly  51   Cal.  145;    Judson  r.  For-  must  be  brought  in  the  county  and 

ter,  lb.,  562;  Grant  r.  Moore,  88  N.  court  in  which  such  action  is  pend- 

C,  77;    Scott  /?.  Runner,   146  Ind..  ing,  or  in  which  the  judgment  or 

12,  44  N.  E.,  755,  58  Am.  St.  Rep.,  order  was   obtained.     Anderson   v. 

345;    Beck  v.  Fransham,  21   Mont,  Hall,  48  Iowa,  346.     And  it  is  held 

117,  53  Pac,  96.     See  also  Mason  v.  in    Kentucky    that    the   section    of 

Chambers,  4  J.  J.  Marsh.,  402.  the  Code  which  provides  that,  "no 

:'  Flaherty  r.  Kelly,  51  Cal.,  145.  injunction  shall  be  granted  to  stay 

*  Roshell  r.  Maxwell,  Hemp.,  25;  proceedings  on  a  judgment  or  final 

McCrimmin     r.    Cooper,     37     Tex.,  order  of  a  court  in  any  other  court 

423.  than  that  in   which  the  judgment 

•"  Bank  of  Kentucky  /■.  Hancock,  or  order  was  entered  or  made,"  ap- 

G   Dana,  284.  plies  as  well  to  justice  courts  as  to 

'1  .McClellan  r.  Crook,  4  Md.  Ch.,  courts  of   record,   and   that   a  jus- 

398.     Under  the  provisions  of  the  tice's  judgment  must  be  enjoined 

Code  of  Iowa,  -when  proceedings  in  in   the  justice  court,   although   by 

a  civil  action  or  upon  a  judgment  reason  of  costs  and  accrued  inter- 

or  final  order  are  sought   to  Ik^  on-  est    the    amount    involved    exceeds 


CllAT.   111.  I  A CiAlXST    JUDGMENTS.  253 

of  the  various  states  or  of  the  United  States,  in  granting  relief 
l)y  injunction  as  against  proceedings  pending  in  the  courts  of 
the  other  sovereignty,  state  or  national,  have  already  been 
considered  somewhat  in  detail  in  a  previous  chapter  of  this 
treatise.'^  Substantially  the  same  principles  are  applicable  to 
cases  where  it  is  sought  in  the  one  tribunal,  state  or  national, 
to  enjoin  proceedings  under  final  judgments  of  the  other, 
as  were  there  shown  to  govern  in  cases  where  the  relief  is 
sought  to  restrain  proceedings  in  an  action  at  law  before  it 
has  reached  the  stage  of  a  final  judgment,  and  it  is  neither 
necessary  nor  desirable  to  repeat  the  general  discussion  per- 
taining to  that  branch  of  the  subject.  As  a  general  rule  the 
state  courts  refuse  to  trespass  upon  the  clearly  established 
jurisdiction  of  the  United  States  courts,  and  refuse  to  grant 
injunctions  against  the  enforcement  of  judgments  recovered 
in  those  courts,  preferring  that  whatever  grounds  of  equita- 
ble relief  may  exist  against  such  judgments  should  be  urged 
in  the  United  States  courts  themselves.^  Especially  will  the 
state  courts  refuse  to  interfere  in  cases  where  jurisdiction 
is  expressly  conferred  by  statute  upon  the  federal  courts,  as 
in  the  case  of  a  judgment  for  an  infringement  of  letters  pat- 
ent.** And  as  between  the  state  and  federal  courts  in  cases 
in  which  their  jurisdiction  is  co-ordinate  over  the  same  subject- 
matter,  that  court  which  first  obtains  jurisdiction  will  be  left  to 
retain  it  to  the  end,  and  its  process  will  not  be  interfered  with 
by  injunction  from  the  other  tribunal.  A  state  court  will 
not,  therefore,  under  such  circumstances,  enjoin  a  levy  under 
execution  from  a  court  of  the  United   States  upon  property 

the  limit  of  the  justice's  jurisdic-  Brooks  c.  Montgomery,  23  La.  An., 

tion.    Davis  v.  Davis,  10  Bush,  274.  450;  Chapin  v.  James,  11  R.  I.,  86; 

"  See  chapter  II,  ante,   §   108  ei  Prugh      v.     Portsmouth      Savings 

seq.  Bank,  48  Neb.,  414,  67  N.  W..  309. 

sMcKim   r.   Voorhies,   7   Cranch,  58  Am.  St.  Rep.,  700;    McCullough 

279;    Kendall    v.    Winsor,   6    R.    I.,  r.    Hicks,   63    S.   C,   542,  41    S.   E., 

453;  English  r.  Miller,  2  Rich.  Eq.,  761. 
320;    Logan  ;•.  Lucas,  59   111.,  237:         "Kendall  v.  Winsor,  6  R.  I.,  453. 


254  INJUNCTIONS.  [chap.  III. 

claimed  by  a  person  other  than  the  judgment  debtor,  but  will 
leave  the  party  aggrieved  to  seek  his  remedy  in  the  forum 
in  which  the  judgment  was  recovered.^  ^  Nor  will  a  court  of 
equitj^  powers  of  a  state  enjoin  proceedings  under  a  judgment 
recovered  in  a  state  court,  upon  the  application  and  for  the 
protection  of  a  creditor  who  afterwards  proceeds  by  garnish- 
ment against  the  same  debtor  in  a  court  of  the  United  States. 
In  such  a  case  the  relief  is  refused  upon  the  ground  that,  the 
state  court  having  first  acquired  jurisdiction,  its  right  to  pro- 
ceed to  judgment  and  execution  can  not  be  affected  by  sub- 
sequent proceedings  instituted  in  the  federal  court.^^  And 
upon  the  principle  that  a  court  of  equity,  in  enjoining  legal 
proceedings,  either  before  or  after  judgment,  acts  strictly  in 
personam  and  not  against  the  court  or  its  process,  an  injunc- 
tion will  not  be  granted  by  a  state  court  to  restrain  a  ma7i- 
damus  suit  instituted  in  the  federal  court  for  the  purpose  of 
compelling  the  county  authorities .  to  levy  and  collect  a  tax 
for  the  payment  of  a  judgment  rendered  against  the  county  in 
such  federal  court,  since  the  mandamus  proceeding  is  ancillary 
to  the  judgment  and  is  regarded  as  the  process  of  the  court 
by  means  of  which  the  judgment  is  enforced.^^ 

§  267.  State  court  may  enjoin  interference  with  judgment 
of  federal  court.  While,  as  is  thus  shown,  the  state  courts 
decline  to  interfere  by  injunction  with  proceedings  under  judg- 
ments of  the  federal  courts  in  matters  over  which  they  have 
acquired  jurisdiction,  and  while  they  also  refuse  to  restrain 
proceedings  for  the  enforcement  of  a  judgment  of  a  state 
court  in  aid  of  a  proceeding  afterward  instituted  in  a  fed- 
eral court,  they  are  equally  prompt  to  protect  the  jurisdic- 
tion of  the  federal  court  when  it  has  fii-st  attached,  even,  if 
need  be,  by  the  process  of  injunction.  And  where  property 
is  levied  upon  under  an  execution  upon  the  judgment  of  a 

")Chapin  r.  James,  11  R.  I.,  86;  "Arthur  r.  Batte,  42  Tex.,  159. 
Brooks  r.  Montgomery,  23  La.  An.,  '^  McCullough  r.  Hicks,  63  S.  C, 
450.  542,   41   S.   E.,   761. 


CHAP.  III.]  AGAINST   JUDGMENTS.  255 

federal  court,  and  a  subsequent  levy  is  made  upon  the  same 
property  under  junior  judgments  recovered  in  a  state  court, 
and  the  premises  are  advertised  for  sale  upon  the  same  day 
under  both  levies,  a  state  court  may  properly  enjoin  a  sale 
under  the  levy  from  the  state  court,  the  property  being  pre- 
viously in  the  hands  of  the  United  States  marshal  under  the 
process  from  the  federal  court.^^ 

§  268.  Federal  courts  decline  to  enjoin  judgments  of  state 
courts.  The  same  principle  of  comity  illustrated  by  the  pre- 
ceding section  is  recognized  by  the  federal  courts,  and  they 
decline  to  interfere  by  injunction  with  proceedings  under  a 
judgment  recovered  in  the  state  courts  in  matters  over  which 
their  jurisdiction  has  first  attached.  Where,  therefore,  a  sheriff 
is  in  possession  of  property  levied  upon  under  an  execution 
from  a  state  court  which  first  obtained  jurisdiction  of  the  con- 
troversy, the  federal  courts  are  bound  to  respect  such  prior 
jurisdiction,  and  will  decline  to  interfere  therewith  by  injunc- 
tion.i'*  Indeed,  under  the  provisions  of  the  act  of  Congress 
prohibiting  the  courts  of  the  United  States  from  granting 
injunctions  to  stay  proceedings  in  any  court  of  a  state, 
except  in  cases  where  such  interference  may  be  authorized 
under  bankruptcy  laws,  it  is  difficult  to  conceive  of  any  other 
case  where  the  federal  courts  may  properly  interfere  by  injunc- 
tion with  proceedings  under  judgments  recovered  in  the  state 
courts.^  ^  Notwithstanding  this  absolute  prohibition,  however, 
•  against  interference  on  the  part  of  the  courts  of  the  United 
States,  it  was  formerly  held  that  a  federal  court  might  enjoin 
the  enforcement  of  an  execution  issued  by  a  state  court  which 
had  been  levied  upon  property  belonging  to  a  third  person 
not  a  party  to  the  judgment.  Such  unauthorized  levy,  it 
was  held,   was  in  no   sense   a  proceeding  of  the  court  from 

13  Hall  V.  Boyd,  52  Ga.,  456.  97  Fed.,  136.    The  legislation  prior 

14  Ruggles  V.  Simonton,  3  Bis-  to  the  revision  may  be  found  in 
sell,   325.  an     act     of     Congress     approved 

15  Revised  Statutes  U.  S.,  §720;  March  2,  1793,  chap,  xxii,  sec.  5, 
1  U.  S.  Comp.  Stat.  1901,  p.  581;  1  U.  S.  Statutes  at  Large,  334,  335. 
Laethe  r.  Thomas,  38  C.  C.  A.,  75. 


256  INJUNCTIONS.  [chap.  iir. 

Avhich  the  process  issued,  and  did  not,  therefore,  fall  within 
the  prohibition  of  the  act  of  Congress.^  ^  And  although  the 
state  had  provided  by  statute  a  remedy  for  such  grievance 
by  action  at  law  in  its  own  courts,  which  equity  alone  could 
have  afforded  before  the  statute,  the  courts  of  the  United 
States,  it  was  held,  would  not  thereby  be  deprived  of  their 
jurisdiction  to  afford  relief  in  such  a  case.^'  The  later  and, 
unquestionably,  the  better  doctrine,  however,  of  the  federal 
courts  is  that  they  will  not  interfere  by  injunction  to  prevent 
a  sale  of  one's  property  under  execution  against  a  third  per- 
son, issued  from  a  state  court,  but  will  leave  the  party  com- 
plaining to  seek  his  remedy  in  the  state  forum.^^  But  a  fed- 
eral court  ma.v  enjoin  the  enforcement  of  a  judgment  ren- 
dered by  a  state  court  when  it  acts  for  the  purpose  of  pro- 
tecting its  own  prior  acquired  jurisdiction  which  would  other- 
wise be  defeated  or  impaired.^ '^  As  regards  the  jurisdiction 
of  the  federal  courts  to  restrain  proceedings  under  their  own 
judgments,  the  fact  that  the  process  of  the  court  in  the  injunc- 
tion suit  is  served  on  defendant  without  the  district  in  which 
the  court  is  located  does  not  oust  it  of  jurisdiction  and  affords 
no  ground  for  withholding  the  injunction.^" 

§  268  a.  Exception  to  rule.  A  well  established  exception  to 
the  prohibition  of  §  720  is  recognized  in  cases  where  a  judg- 
ment has  been  procured  in  a  state  court  through  the  fraud  of 
the  judgment  creditor,  or  through  inavoidable  accident  or  mis- 
take, unaccompanied  by  any  fault  or  negligence  upon  the  part 
of  the  judgment  debtor.  Under  such  circumstances,  while  the 
federal  court  can  not  require  the  state  court  to  vacate  or  set 

I"  Cropper   r.    Coburn,    2    Curtis,  t' Julian    v.    Central    Trust    Co., 

4«5.  193  U.  S.,  93,  24  Sup.  Ct.  Rep.,  399, 

''  Id.  affirming    S.   C,   53    C.   C.    A.,   438, 

"*  Daly  r.  The  Sheriff,  1   Woods,  115  Fed.,  956. 

175;        American     Association      r.  -<M.,ogan   v.   Patrick,    5    Cranch, 

Hurst.  7  C.  C.  A;,  598,  59  Fed..  1:  288. 
Mills  V.  Provident  L.  &  T.  Co.,  40 
C.   C.   A.,  394,  100  Fed.,   344. 


CHAP.  III.]  AGAINST   JUDGMENTS.  257 

aside  its  judgment,  it  may,  nevertheless,  as  between  the  parties 
thereto,  decree  that  the  creditor  shall  not  enjoy  the  benefits  of 
a  judgment  thus  fraudulently  obtained.  In  so  doing,  the 
court  acts  strictly  in  personam  and  in  no  way  contravenes  the 
statutory  provision  in  (|uestion.-' 

§  269.  When  enforcement  of  judgment  of  another  state  en- 
joined. Questions  of  nuieh  nicety  and  of  not  a  little  difficulty 
have  frequently  arisen  in  determining  the  extent  to  which  the 
courts  of  one  state  may  interfere  by  the  process  of  injunc- 
tion with  the  collection  or  enforcement  of  judgments  which 
have  been  recovered  in  the  courts  of  a  sister  state.  If  the 
judgment  of  the  foreign  state  has  actually  been  reversed  in 
the  courts  of  that  state,  the  rule  is  well  established  that  its 
attempted  enforcement  in  another  state  may  properly  be  en- 
joined, if  the  complainant  who  seeks  relief  has  himself  not 
been  guilty  of  laches.22  Thus,  when  a  judgment  record  is  sued 
upon  in  the  courts  of  another  state  and  judgment  is  recovered 
thereon,  but  the  original  judgment  is  afterward  reversed  in 
the  former  state,  its  enforcement  in  the  latter  state  consti- 
tutes sufficient  ground  for  relief  by  injunction.-^  And  a  judg- 
ment of  one  state,  upon  which  suit  is  brought  and  judgment 
recovered  in  another  state,  becomes  so  merged  in  the  latter 
judgment  that  its  attempted  enforcement  in  the  former  state 
may  be  restrained  because  of  such  merger.^-^  So  in  an  action 
in  the  nature  of  a  bill  of  interpleader  to  determine  to  which 
of  two  claimants  certain  policies  of  life  insurance  should  be 
paid,  the  court,  having  found  one  of  the  claimants  entitled 
to  the  payment,  may  properly  enjoin  the  other  from  enforcing 

21  Marshall  v.  Holmes,  141  U.  S.,  Northern   Pacific  R.   Co.   r.  Kurtz- 

589,  12  Sup.  Ct.  Rep.,  62;    McDan-  man,  82  Fed.,  241. 

iel  V.   Traylor,   196   U.    S.,    415,   25  22  McJilton  v.  Love,  13  111.,  486; 

Sup.     Ct.     Rep.,      369;       National  Howard    v.    Simmons,    25   La.   An., 

■  Surety  Co.  v.  State  Bank,  56  C.  C.  668. 

A.,  657,  120  Fed.,  593,  61  L.  R.  A.,  23  Howard    v.    Simmons,     25    La. 

394;    Young  !J.  Sigler,  48  Fed.,  182;  An.,  668. 

2^  Gould  V.  Hayden,  63  Ind.,  443. 
17 


258  INJUNCTIONS.  [chap.  III. 

judgments  which  he  has  obtained  upon  the  same  policies  in 
another  state.^^  But  the  courts  of  one  state  will  not  relieve 
against  a  judgment  recovered  in  another  state  on  the  ground 
of  alleged  irregularities  in  the  proceedings  in  the  suit  in 
such  other  state,  since  such  objections  should  have  been 
urged  upon  the  former  trial  at  law.-^  Nor  will  a  court  of 
equity  enjoin  the  enforcement  of  a  judgment  of  a  sister 
state  upon  grounda  which  might  have  been  urged  as  a  de- 
fense to  the  action  at  law  in  such  state,  and  where  defend- 
ant in  the  judgment  shows  no  satisfactory  reason  why  his 
defense  was  not  interposed  in  the  original  action.^'^  Nor 
will  a  defendant  be  enjoined  from  setting  up  in  defense  of 
the  action  a  judgment  which  he  has  recovered  against  the 
plaintiff  in  another  state,  upon  the  ground  that  it  was  re- 
covered upon  false  and  perjured  testimony,  since  relief 
should  be  sought  against  such  judgment  in  the  state  in  which 
it  was  rendered.-^  But  it  would  seem  that  a  bill  for  an  in- 
junction will  lie  to  stay  proceedings  under  a  judgment  in  an 
action  of  debt  brought  upon  the  judgment  of  another  state 
upon  graunds  which  would  warrant  an  injunction  against  a 
judgment  rendered  in  the  same  state  in  which  the  injunc- 
tion is  sought.-^  So  where  actions  at  law  are  brought  in  two 
different  states  against  the  same  defendant  for  the  same 
cause  of  action,  and  a  judgment  is  obtained  in  one  state 
which  defendant  satisfies  in  full,  and  he  is  led  by  the  fraud- 
ulent representations  of  plaintiff  to  believe  that  the  action 
at  law  in  the  other  state  w^ill  not  be  prosecuted  against  him, 
and  thereby  makes  no  defense  to  such  action,  he  is  entitled 
to  an  injunction  in  the  former  state  to  restrain  plaintiff  at 
law  from  collecting  his  judgment  in  the  latter.  In  such  case 
equity  acts  upon  the   conscience    of    the    defendant   in   per- 

z".  Barry  v.  Brune,  71  N.  Y.,  262,  -'s  Metcalf   r.   Gilmore,  59  N.   H.. 

affirming  S.  C.  8  Hun,  395.  417. 

26  Incas  V.  Bank,  2  Stew.,  280.  ■■^^  Wilson   v.   Robertson,   1   Over- 

27  Black  V.  Smith,  13  West  Va.,  ton,  266. 
780. 


CHAP.  III.] 


AGAINST   JUDGMENTS. 


259 


sonant,    aiid   not  upon  the  courts  of  the  state   in  which  the 
action  is  pending.^^^ 


30  Bngel  V.  Scheuerman,  40  Ga., 
206.  "This  bill  is  not  filed,"  say 
the  court,  Warner,  J.,  "for  the  pur- 
pose of  restraining  the  proceed- 
ings of  the  court  of  New  York; 
the  courts  of  this  state  have  no 
jurisdiction  to  do  that;  nor  would 
the  courts  of  this  state  have  juris- 
diction to  enjoin  the  enforcement 
of  a  judgment  obtained  in  the 
courts  of  New  York,  between  citi- 
zens of  that  state,  resident  there. 
The  question  here  is,  whether  a 
court  of  chancery,  in  this  state, 
has  jurisdiction  to  restrain  the 
personal  action  of  the  defendant, 
so  far  as  to  prohibit  him  from  en- 
forcing the  collection  of  the  judg- 
ment obtained  in  the  courts  of 
New  York,  according  to  the  facts 
of  this  case.  There  is  a  clear  dis- 
tinction as  to  the  power  and  au- 
thority of  a  court  of  equity,  in 
this  state,  to  restrain  by  injunc- 
tion the  proceedings  of  a  court  in 
another  state,  and  the  power  and 
authority  of  such  court  to  re- 
strain by  injunction  the  personal 
action  of  a  citizen  of  this  state. 
In  the  one  case,  a  court  of  equity, 
in  this  state,  has  no  jurisdiction; 
in  the  other,  it  has  jurisdiction  to 
restrain  by  injunction  the  personal 
action  of  the  defendant  himself 
from  enforcing  an  unconscientious 
demand  in  another  state,  whether 
that  demand  is  reduced  to  judg- 
ment or  not,  upon  a  proper  case 
being  made.  The  record  now  be- 
fore us,  in  our  judgment,  makes 
such  a  case.  The  defendant  volun- 
tarily came  into  the  courts  of  this 
state  in  the  first  instance,  to  have 


his  claim  adjudicated,  and  that 
claim  has  been  adjudicated  there- 
in, paid  off  and  discharged.  We 
are  not  aware  that  comity  between 
the  several  states  of  the  Union  re- 
quires that  the  courts  of  this  state 
shall  assume  that  the  courts  of  the 
state  of  New  York  are  any  more 
competent  to  hear  and  decide  the 
defendant's  claim,  and  to  do  him 
justice,  than  are  the  courts  of  this 
state,  to  the  jurisdiction  of  which 
he  voluntarily  submitted  the  same 
for  adjudication  in  the  first  in- 
stance. In  restraining  him,  by  in- 
junction, from  enforcing  this  un- 
conscientious demand,  in  the  state 
of  New  York,  the  court  acts  upon 
his  conscience  in  personam  and 
not  upon  the  courts  of  that  state; 
the  person  of  the  defendant  is 
within  the  jurisdiction  of  the 
court,  the  proceedings  of  the 
courts  in  the  state  of  New  York 
are  not,  and  we  do  not  interfere 
with  them.  The  supreme  court  in 
New  York,  in  which  the  judgment 
was  obtained,  has  no  interest  in 
the  enforcement  of  that  judgment 
— the  defendant  has;  and  a  court 
of  equity,  in  this  state,  having 
jurisdiction  of  his  person,  will  re- 
strain him  from  making  that  in- 
terest available,  when  it  would  be 
against  conscience  and  the  prin- 
ciples of  equity  that  he  should  do 
so.  In  the  language  of  the  Mas- 
ter of  the  Rolls,  in  Cranstown  v. 
Johnston,  this  court  will  not  per- 
mit the  defendant  to  avail  him- 
self of  the  law  of  any  other  coun- 
try, to  do  what  would  be  gross  in- 
justice." 


260  INJUNCTIONS.  [chap.  III. 

§270.  Decree  in  equity;  doctrine  as  to  enjoining.  Upou 
the  question  of  the  extent  to  which  relief  by  injunction  may 
be  granted  against  proceedings  under  a  decree  in  chancery, 
the  authorities  are  somewhat  conflicting  and  not  wholly 
reconcilable.  Upon  principle  it  is  difficult  to  perceive  any 
satisfactory  reason  why  the  jurisdiction  should  not  be  extended 
to  restraining  the  enforcement  of  decrees  in  chancery  upon  the 
same  grounds  and  for  like  reasons  as  those  which  underlie  the 
jurisdiction  in  restraint  of  the  enforcement  of  judgments  at 
law.  A  decree  being  the  final  and  formal  embodiment  of  the 
judicial  action  of  a  court  of  equity,  as  a  judgment  is  that 
of  a  court  of  law,  no  higher  degree  of  inviolability  is  per- 
ceived to  attach  to  the  one  judicial  determination  than  attaches 
to  the  other.  In  neither  event  is  the  process  of  injunction 
directed  to  the  court  itself,  but  only  to  the  action  of  the 
parties  litigant,  and  if  that  action  is  such  as  to  justify  the 
preventive  aid  of  equity  by  an  injunction  in  the  case  of  a 
judgment  at  law  whose  enforcement  is  improperly  sought, 
the  necessit}^  for  like  relief  against  a  decree  in  chancery 
under  like  circumstances  would  seem  to  be  equally  impera- 
tive, and  its  justification  equally  clear.  It  has  been  held, 
however,  that  one  court  of  equity  will  not  interfere  with 
or  restrain  the  proceedings  of  another  court  of  like  juris- 
diction and  powers.^i  And  the  rule  has  been  broadly  held 
that  equity  will  not  enjoin  its  own  proceedings  or  restrain 
the  enforcement  of  its  own  decrees,  since  by  so  doing  it 
would,  in  effect,  declare  that  to  be  improper  and  wrong  which 
it  had  previously  declared  to  be  proper  and  right.^-  Upon 
the  other  hand,  there  is  high  authority  for  holding  a  con- 
trary doctrine,  and  the  rule  in  Tennessee,  at  least,  may  be  said 
to  be  well  established  that  a  court  of  equity  may  and  will 
enjoin  the  execution  of  its  own  decrees  in  the  same  manner 

31  Deaderick  r.  Sniiili,  ti  Humph.,         >-•  Greenlee  v.  McDowell,  4   Ired. 
138.     But  see   Douglass   r.   .loyner,     Eq..   481. 
1  Baxter,  32. 


CHAP.  HI. J  AGAINST  JUDGMENTS.  261 

and  upon  the  same  grounds  Avhicli  would  justify  like  relief 
against  judgments  at  law/'^  And  the  rule  as  thus  announced 
has  been  followed  and  applied  in  Oregon.^-*  And  while  it  is 
undoubtedly  true  that  one  chancellor  can  not  enjoin  the 
decrees  of  another  for  the  purpose  of  reviewing  or  revers- 
ing them  in  a  different  court  from  that  in  which  they  were 
rendered,  it  is  nevertheless  competent  for  one  court  of  equity 
to  enjoin  the  collection  of  an  execution  from  another  upon 
the  ground  that  it  is  being  illegally  enforced,  having  already 
been  paid  or  satisfied.^^  So  upon  a  bill  of  review  to  procure 
the  reversal  of  a  decree  in  equity,  good  cause  being  shown 
for  reversing  such  decree,  it  is  proper  to  grant  an  injunc- 
tion pendente  lite,  to  prevent  a  levy  and  sale  under  the  decree 
which  it  is  sought  to  reverse  upon  the  bill  of  review.^^ 
And  judgments  recovered  at  law  upon  notes  given  for  the 
purchase  money  of  estates,  sold  under  a  decree  in  chancery, 
may  be  enjoined  in  the  court  of  chancery  in  which  the  original 
proceedings  were  had,  good  cause  therefor  being  shown.-"''^ 

§  271.  Injunction  has  no  extra-territorial  effect.  As  regards 
the  effect  of  an  interlocutory  injunction  which  is  obtained 
in  one  country  to  restrain  the  enforcement  of  a  judgment 
there  recovered,  it  is  to  be  observed  that  it  is  not  necessarily 
binding  or  conclusive  upon  the  courts  of  another  country 
when  proceedings  are  afterward  instituted  there  for  the 
enforcement  of  the  same  judgment.  Thus,  it  is  held  in  Eng- 
land, that  an  interlocutory  order  of  the  Irish  Court  of  Chan- 

a-'  Montgomery    r.   Whitworth,    1  94  Va.,  760,  27  S.  B.,  588,  64  Am. 

Tenn.     Ch.,     174.     In     Virginia     it  St.  Rep.,  777. 

would  seem  that  a  court  of  equity  34  McDonald     r.     Mackenzie,     24 

may  enjoin  the  enforcement  of  a  Ore.,  573,  14  Pac,  866. 

decree  pro  confesso  based  upon  a  ^■>  Greenfield  v.  Hutton,  1  Baxter, 

false  i-eturn  of  service  of  process,  216. 

when  such  return  was  procured  at  -ie  Bennett  r.  Brown,  56  Ga.,  216. 

the  instigation  of  the  complainant  37  Deaderick  v.  Smith,  6  Humph., 

in    the    suit    in    which    the    decree  138. 
was  entered.     Preston  v.  Kindrick, 


262  INJUNCTIONS.  [chap.  III. 

eery,  by  which  the  enforcement  of  a  judgment  recovered  in 
Ireland  is  enjoined,  will  be  considered  only  as  authority  in 
England,  and  not  as  necessarily  conclusive  or  binding  upon  the 
English  Court  of  Chancery .^^ 

§  272.    Injunction  not  allowed  ag-ainst  proceeding's  in  attach- 
ment for  contempt,  nor  against  mandamus  proceedings.     It 

is  a  well  settled  principle  of  equity  jurisprudence  that  an 
injunction  will  never  be  granted  for  the  purpose  of  restraining 
proceedings  of  a  criminal  or  quasi  criminal  nature  in  a  court 
having  jurisdiction  over  such  matters.  A  court  of  equity 
will  not,  therefore,  enjoin  a  clerk  of  a  court  from  issuing  an 
attachment  for  the  commitment  of  a  person  who  has  been 
adjudged  guilty  of  a  contempt  .of  court  in  disobeying  a  per- 
emptory writ  of  mandam^is.  ^^  And  an  additional  ground  for 
refusing  relief  by  injunction  in  such  case  is  found  in  the  fact 
that  the  granting  of  the  writ  against  the  officer  of  another 
court  would  necessarily  lead  to  a  conflict  of  jurisdiction,  since 
it  would  be  the  duty  of  such  other  court  to  protect  its  own 
officer."**^  So  where  one  has  been  committed  and  fined  for  a 
contempt  of  a  court  having  competent  jurisdiction  and  full 
power  to  inflict  such  punishment,  a  court  of  equity  will  not 
enjoin  the  execution  of  the  order  of  attachment,  when  com- 
plainant admits  that  he  had  an  opportunity  of  making  his 
defense  in  the  court  by  which  he  was  attached.'*^  And  it  was 
early  held  by  the  English  Court  of  Chancery  that  an  injunc- 
tion would  not  lie  to  stay  proceedings  in  mandamus.  ^^ 

38  Ball  V.  Storie,  1  Sim.  &  Stu.,  under  examination  in  this    court; 

211.  and    that    if    they    did,    this    court 

.-io  Tyler  v.  Hamersley,  44  Conn.,  would  break    it,    and    protect   any 

419.  that    would    proceed    in    contempt 

40  Tyler  v.  Hamersley,  44  Conn.,  of  it." 

419.   And  see  Holderstaffe  v.  Saun-  •»!  Sanders   r.    Metcalf,    1    Tenn. 

ders,  6  Mod.,  16,  where  Lord  Holt,  Ch.,  419. 

Chief     Justice      of     the      Queen's  •»-  Montague  v.  Dudman,    2  Ves. 

Bench,   is   reported   to   have   said:  Sr.,  396.     The  bill  was  filed  to  pro- 

"Surely   chancery   will     not    grant  cure    an     injunction     against    pro- 

an  injunction  in  a  criminal  matter  ceedings  in  mandamus.     Upon  de- 


CHAP.  III.] 


AGAINST  JUDGMENTS. 


263 


murrer  to  the  bill  Lord  Hard- 
wicke  held,  p.  396:  "This  court 
has  no  jurisdiction  to  grant  an  in- 
junction to  stay  proceedings  on  a 
mandamus;  nor  to  an  indictment; 
nor  to  any  information;  nor  to  a 
writ  of  prohibition  that  I  know  of. 
The  reason  is  that  the  mandamus 
is  not  a  writ  remedial,  but  man- 
datory. It  is  vested  in  the  King's 
superior  court  of  common  law  to 


compel  inferior  courts  to  do  some- 
thing relative  to  the  public.  That 
court  has  a  great  latitude  and  dis- 
cretion in  cases  of  that  kind;  can 
judge  of  all  the  circumstances; 
and  is  not  bound  by  such  strict 
rules  as  in  cases  of  private  rights. 
That,  therefore,  must  be  given  up 
as  any  color  for  such  an  injunc- 
tion." 


264  INJUNCTIONS.  [chap.  III. 

XL     Injunctions  against  Awards. 

§  273.  Judgment  on  award  rarely  enjoined. 

274.  The   doctrine   illustrated. 

275.  Laches   will  bar  relief  against  judgment  on  award. 

276.  Injunction  allowed  when  award  based  on  false  testimony. 

§  273.  Judgment  on  award  rarely  enjoined.  An  injunction 
will  rarely  be  allowed  against  the  enforcement  of  a  judgment 
made  upon  an  award  of  arbitrators,  since  objections  to  the 
regularity  of  the  proceedings  can  and  usually  should  be  made 
at  law\  And  in  the  absence  of  any  allegation  of  fraud,  acci- 
dent, or  mistake,  the  relief  with  be  withheld.^  Even  where  it 
is  alleged  that  the  aw^ard  was  obtained  by  fraud  and  corrup- 
tion, an  injunction  will  not  allowed  w^here  the  grounds  relied 
upon  could  have  been  urged  as  a  defense  to  the  suit  at  law 
brought  upon  the  award.-  Where,  however,  the  fraudulent 
and  improper  conduct  of  the  arbitrators  can  only  be  made 
to  appear  by  evidence  dehors  the  award,  and  which  can  not  be 
pleaded  to  the  action  at  law,  the  rule  is  otherwise.  And  where, 
after  the  hearing  before  the  arbitrators  w'as  closed,  they  re- 
ceived statements  from  one  of  the  parties,  unknown  to  the 
other,  and  containing  different  items  relative  to  his  claim,  an 
injunction  was  granted.^ 

§  274.  The  doctrine  illustrated.  Allegations  that  arbitra- 
tors exceeded  the  scope  of  their  authority,  and  that  complain- 
ant had  not  sufficient  notice  of  the  time  and  place  of  their 
meeting,  will  not  warrant  an  injunction  against  the  judgment 
when  such  facts  might  have  been  urged  in  defense  of  the 
action  at  law  upon  the  award.-*  And  where  the  invalidity  relied 
upon  as  the  foundation  for  the  relief  appears  on  the  face 
of  the  proceedings,  no  injunction  will  be  allowed.-'*     So  equity 

1  .Tones   v.   Frosh,    6    Tex.,   202;  •'  Sisk  v.  Garey,  27  Md.,  401. 

Emerson  r.  Udall,  13  Vt,  477.  ■»  Emerson  v.  Udall,  13   Vt.,  477. 

■•;  Snediker    v.    Pearson,    2    Barb.  •''  Meloy    v.   Dougherty,    16  Wis., 

Ch.  R..  107.  269. 


CHAI'.  III.]  AGAIXST   JUDGME.VTS.  265 

will  not  disturb  by  injunction  an  award  in  favor  of  a  private 
citizen  against  a  town,  when  it  does  not  appear  that  any  great 
or  irreparable  injury  is  done  the  town,  and  when  the  person 
in  whose  favor  the  award  was  made  would  be  subjected  to 
great  hardship  and  injustice  should  the  injunction  be  granted.® 

§  275.    Laches  vdll  bar  relief  a-gainst  judgment  on  award. 

One  Avho  seeks  relief  in  equity  against  an  award  must  show 
due  diligence  in  making  his  application  and  must  come  into 
court  with  clean  hands.  And  when  complainant  has  been 
guilty  of  laches  in  the  assertion  of  his  right,  or  when  his  own 
conduct  has  not  been  free  from  blame,  he  will  be  refused 
relief.'''  Nor  will  a  judgment  upon  an  award  be  enjoined 
because  of  an  alleged  mistake  or  misapprehension  upon  the 
part  of  complainant  or  his  attorney  as  to  the  matters  considered 
by  the  arbitrators,  when  it  appears  that  such  misapprehension 
was  not  caused  by  any  misrepresentation  or  fraud  of  the  oppos- 
ing party,  and  when  there  is  no  evidence  of  fraud  in  obtain- 
ing the  judgment.^ 

§  276.  Injunction  allowed  when  award  based  on  false  tes- 
timony. It  is  thus  apparent  that  courts  of  equity  interfere 
with  great  reluctance  with  the  awards  of  arbitrators,  or  with 
judgments  rendered  upon  such  awards,  such  reluctance  being 
attributable  to  the  fact  that  the  law  favors  an  adjustment 
of  controversies  by  arbitration,  and  the  courts  will  not,  in 
such  cases,  interfere  in  behalf  of  one  whose  defeat  is  attribu- 
table to  his  own  negligence.  Where,  however,  an  award  has 
been  obtained  upon  false  testimony,  misleading  and  deceiving 
the  arbitrators,  sufficient  ground  is  presented  for  enjoining 
proceedings  for  the  enforcement  of  the  award,  such  a  case 
being  plainly  distinguishable  from  those  already  discussed  in 
which  the  relief  has  been  refused.^ 

8  Hine  v.  Stephens,  33  Conn.,  497.  '^  Gibson's    Adm'r    r.    Armstrong. 

'  Jones  r.  Bennett,  1  Bro.  P.  C,  32  Ark.,  438. 

528;     Smith   v.   Whitmore,  1   H.   &  « Craft    r.    Thompson,    51    N.   H., 

M.,  576.  536. 


266  INJUNCTIONS.  [chap.  III. 


XII.     Judgments  by  Default  and  Confession. 

§  277.  Judgment  by  default  rarely  enjoined. 

278.  Question  dependent  upon  diligence  in  defending;  illustrations. 

279.  Judgments    by    confession   rarely    enjoined;    illustrations. 

280.  Judgments    fraudulently    confessed    may    be    enjoined. 

281.  Judgment   on   note   barred    by   statute  of  limitations   in   state 

where  given. 

§  277.  Judgment  by  default  rarely  enjoined.  In  the  absence 
of  fraud  or  deception  an  injunction  will  rarely  be  allowed 
against  a  judgment  which  complainant  has  suffered  to  go 
against  him  by  default.^  And  where  one  has  negligently  per- 
mitted judgment  to  go  against  him  by  default,  such  negligence 
is  sufficient  to  prevent  him  from  obtaining  the  aid  of  an 
injunction  against  the  judgment.-  Indeed,  in  a  case  of  default, 
a  court  of  equity  may  refuse  to  consider  the  merits  of  the  case 
any  further  than  the  question  of  complainant's  negligence  in 
asserting  his  rights  at  law,  and  no  sufficient  excuse  appearing 
for  his  having  neglected  to  defend  at  law,  the  injunction  will 
be  refused.^  Nor  will  the  proceedings  be  enjoined  merely 
because  plaintiff  obtained  more  relief  than  he  was  entitled 
to  by  his  action,  there  being  no  misrepresentation  or  decep- 
tion by  which  defendants  were  in  any  way  misled.*  And  in 
the  absence  of  fraud  or  collusion,  an  injunction  will  not  be 
continued  against  a  judgment  at  law  by  default  where  no  real 
defense  could  have  been  made  to  the  action,  either  at  law 
or  in  equity.^  And  a  court  of  equity  will  not  ordinarily  enjoin 
the  enforcement  of  a  judgment  taken  by  default  because  of 
a  defense  of  which   the  defendant  might  have  availed  him- 

1  Murdock  v.   De  Vries,   37   Cal..  ■'■  Faulkner    r.   Campbell,  Morris 

527;    Sohier  v.  Merril,  3  Woodb.  &  (Iowa),  148. 

M.,  179.  'Murdock   r.  De  Vries,   37    Cal., 

-  Faulkner    r.    Campbell,    Morris  527. 

(Iowa),  148;    Mason  v.  Richards,  3  "'Sohier   r.   Merril,    3   Woodb.   & 

Gilm.,   25.  M.,  179. 


CHAP.  III.]  AGAINST   JUDGMENTS.  267 

self  in  the  action  at  law."  So  when  a  judgment  has  been 
recovered  against  a  married  woman  in  a  case  where  her 
coverture  would  have  been  a  good  defense  to  the  action,  the 
judgment  being  only  voidable  and  not  void,  it  will  not  be 
restrained  at  the  suit  of  the  wife,  no  fraud  being  shown.'^  So 
equity  will  not  enjoin  a  judgment  rendered  by  default  where 
the  complainant  has  a  remedy,  by  motion  in  the  court  where 
the  judgment  was  rendered,  to  set  it  aside.^  Nor  will  relief 
be  granted  against  a  default  judgment  upon  the  ground  of  a 
set-off  where  it  could  have  been  urged  as  a  defense  to  the  suit 
in  which  the  judgment  was  given.'^ 

§278.  Question  dependent  upon  diligence  in  defending; 
illustrations.  It  is  thus  apparent  that  the  question  of  granting 
relief  by  injunction  against  judgments  which  have  been  ren- 
dered by  default  is  largely  dependent  upon  the  question 
whether  the  judgment  debtor  seeking  the  relief  has  or  has 
not  used  due  diligenge  in  availing  himself  of  his  means  of 
defense  to  the  action  at  law.  And  if  the  default  is  not  oc- 
casioned by  any  omission  or  want  of  diligence  upon  his 
own  part,  upon  showing  a  meritorious  defense  to  the  action, 
he  is  entitled  to  the  aid  of  an  injunction.  Thus,  where  com- 
plainant shows  by  his  bill  a  meritorious  defense  to  the  action 
at  law ;  that  he  was  never  served  with  process  in  that  action 
and  never  appeared  therein  or  authorized  any  one  to  appear 
for  him ;  that  the  return  of  service  of  process  is  untrue,  and 
that  he  had  no  knowledge  or  notice  of  the  action,  a  judgment 
against  him  by  default  should  be  enjoined.^*'  So  where  a 
defendant  in  an  ejectment  suit,  relying  upon  plaintiff's  assur- 

eProtheroev.  Forman,  2  Swanst,  Pac,  885;     Brown  r.  Chapman,  90 

227;    Langley  v.  Ashe,  38  Neb.,  53,  Va.,  174,  17  S.  E.,  855. 

56  N.  W.,  720.  9  Twigg  v.  Hopkins,  85  Md.,  301, 

7  McCurdy     v.      Baughman,      43  37  Atl.,  24. 

Ohio  St.,  78,  1  N.  E.,  93.  I'l  Weaver  v.   Poyer,   70   111.,  567. 

8  Kitzman  v.  Minn.  T.  Mfg.  Co.,  See  also  Owens  v.  Ranstead,  22 
10   N.    Dak.,    26,     84     N.    W.,    585;      111.,  161. 

Crist   V.   Cosby,    11   Okla.,    635,   69 


f 


268  INJUNCTIONS.  [chap.  III. 

ance  that  he  will  take  no  personal  judgment  against  him, 
fails  to  enter  his  appearance,  a  personal  judgment  afterwards 
entered  by  default  contrary  to  the  agreementwillbeenjoined.il 
Upon  the  other  hand,  if  it  is  apparent  that  the  judgment 
by  default  w^as  the  result  of  negligence  and  inattention  upon 
the  part  of  defendant  in  the  action,  after  due  service  of 
process  upon  him,  he  will  be  denied  relief  by  injunction  in 
conformity  with  the  elementary  principles  which  have  been 
fully  discussed  in  the  preceding  pages.  For  example,  when 
a  prior  suit  against  defendant  has  been  dismissed,  and  a 
subsequent  suit  begun  against  him  for  the  same  cause  of 
action,  in  which  he  is  duly  served  with  process  and  judg- 
ment is  had  against  him  by  default,  it  is  not  sufficient 
ground  for  enjoining  the  judgment  to  allege  that  he  had  no 
notice  of  the  dismissal  of  the  former  suit  and  believed  it  to  be 
still  pending,  or  that  counsel  had  been  employed  to  defend 
that  suit,  and  that  he  did  not  know  the  nature  of  the  sum- 
mons and  complaint  served  on  him  in  the  second  suit.^-  And 
it  has  been  held  that  relief  will  be  denied  against  a  default 
judgment  where  the  complainant  fails  to  allege  and  prove 
that  the  judgment  Avas  in  nowise  attributable  to  his  own  fault.^-^ 
And  where  it  is  sought  to  enjoin  such  a  judgment,  much  clearer 
and  stronger  proof  of  diligence  and  freedom  from  fault  is 
require'd  than  upon  a  motion  for  a  new  trial  in  the  court  where 
the  judgment  was  rendered.^* 

§279.  Judgments  by  confession  rarely  enjoined;  illustra- 
tions. With  I'egard  to  judgments  l)y  confession,  as  in  the 
case  of  judgments  by  default,  a  court  of  equity  will  not  ordin- 
arily interfere  in  the  absence  of  fraud  or  collusion.  And 
where  defendant  has  voluntarily  and  freely  confessed  judg- 
ment, without  fraud  or  deception  by  the  opposite  party,  he  is 

11  Brake  /■.  Payne,  137  Ind.,  479,  n  Village  of  Celina  v.  Eastport 
37  N.  E.,  140.  Savings  Bank,  15  C.  C.  A.,  495,  68 

1"-:  Bibb  n.  Hitchcock,  49  Ala.,  468.     Fed.,  401. 

•  •■'  Meinert     d.     Harder,     39    Ore., 
609,  65  Pac,  1056. 


CHAP.  III.]  AGAINST  JUDGMENTS.  269 

thereby  estopped  from  enjoining  the  proceedings  on  the  ground 
of  an  equity  existing  anterior  to  his  confession  of  judgment.^^ 
So  where  a  judgment  debtor  obtains  an  injunction  against  a 
judgment  confessed  by  him,  upon  the  ground  that  he  had 
given  a  note  to  the  creditor  in  novation  of  the  judgment,  but 
it  is  shown  upon  the  hearing  that  such  note  was  given  before 
the  judgment  was  confessed,  and  was  tendered  back  before 
execution  issued,  the  injunction  should  be  dissolved.^  "^  And  a 
debtor  who  has  confessed  judgment  in  favor  of  his  creditor 
for  a  smaller  amount  than  that  claimed,  the  confession  being 
made  by  way  of  compromise,  can  not  enjoin  the  enforcement 
of  the  judgment,  in  the  absence  of  fraud  by  the  adverse  party, 
and  when  it  is  not  showTi  that  he  was  prevented  from  defend- 
ing by  reason  of  accident,  mistake,  or  surprise  as  to  material 
facts  necessary  for  his  defense.^'''  So  a  debtor  who  has  con- 
fessed judgment  for  a  just  indebtedness  can  not  restrain  its 
enforcement  upon  the  ground  that  the  cause  of  action  was 
barred  by  the  statute  of  limitations,  no  fraud  having  been 
practised  upon  him  by  the  judgment  creditor.^  ^  Nor  will  a 
judgment  entered  by  consent  of  defendant's  attorneys,  upon 
sufficient  authority  from  defendant,  be  enjoined  when  no  de- 
fense is  shown  to  the  cause  of  action.^^  Nor  will  a  judgment 
by  confession  against  a  corporation  be  enjoined  upon  the 
ground  that  the  particular  corporate  officer  had  no  power  to 
execute  the  warrant  of  attorney,  where  there  is  no  showing 
that  the  judgment  is  inequitable  or  unjust  and  that  it  is  not 
based  upon  an  actual  indebtedness  due  the  plaintiff.-^  So  it 
is  held  that  a  judgment  confessed  upon  a  warrant  of  attorney 

^■-  Moore  v.  Barclay,  23  Ala.,  739.  i'  Morehead      v.     De     Ford,      6 

See  also  Schroeder  v.  Fromme,  31  West  Va.,  316. 

Tex.,  602.    And  see  as  to  the  right  is  Harner  r.  Price,  17  West  Va., 

to  enjoin   a   judgment    by    confes-  523. 

sion  on  the  ground  of  usury.  Hill  i'-'  King  r.  Watts,  23  La.  An.,  563. 

V.  Reifsnider,  46  Md.,  555.  20  Burch  v.  West,  134  111.,  258,  25 

ic  Sallis  V.  McLearn,  23  La.  An.,  N.  E.,  658. 
192. 


270  INJUNCTIONS.  [chap.  III. 

to  secure  a  contingent  liability,  not  being  void  as  between  the 
parties,  its  execution  will  not  be  restrained  because  of  a  defect 
in  the  verification  of  the  pleadings.^i  And  when  the  common 
council  of  a  city,  acting  in  good  faith,  have  directed  the  con- 
fession of  a  judgment  in  a  suit  against  the  city  upon  a  demand 
the  larger  portion  of  which  is  justly  due,  an  injunction  will 
not  be  allowed  in  behalf  of  a  taxpayer  of  the  city  to  restrain 
the  collection  of  the  judgment.  Even  if  equity  has  jurisdic- 
tion to  restrain  the  action  of  a  municipal  corporation  in  such 
a  case,  a  clear  and  substantial  injury  to  the  public  interest 
must  be  showm  before  the  injunction  will  be  allowed.-- 

§  280.  Judgments  fraudulently  confessed  may  be  enjoined. 
Notwithstanding  the  disinclination  which  is  thus  shown  by 
the  courts  toward  interfering  by  injunction  with  judgments 
entered  by  confession,  the  rule  is  well  established  that  a  judg- 
ment confessed  through  fraud  or  collusion  may  be  enjoined 
in  equity,  under  its  ancient  and  well  defined  jurisdiction 
upon  the  ground  of  fraud. ^^  Thus,  where  some  of  the  trustees 
of  an  incorporated  religious  society  have,  without  authority, 
executed  a  fraudulent  judgment  note  in  the  corporate  name, 
by  collusion  with  the  payee,  for  the  evident  purpose  of  incum- 
bering the  church  property  and  subjecting  it  to  a  sale,  and 
thereby  divesting  the  title  of  the  corporation,  equity  may 
enjoin  the  enforcement  of  the  judgment  entered  by  confes- 
sion upon  the  note,  the  payees  in  the  note  being  constructively, 
if  not  actively,  parties  to  the  fraud.^^  And  where  an  injunction 
was  granted  to  restrain  a  sale  of  real  estate  under  execution, 
upon  a  bill  charging  defendant  with  having  confessed  the  judg- 
ment eollusively  in  order  to  prevent  complainant  from  real- 
izing his  prior  judgment  out  of  the  real  estate,  the  bill  was 
held  good  upon  demurrer.^^     But  a  creditor  who  obtains  an 

21  Reiley    v.    Johnston,    22    Wis.,  Young,  2  Halst.  Ch.,  453. 

279.  -^  United     Brethren     Church     v. 

•■i^  Chaffee  r.  Granger,  6  Mich.,  51.  Van  Dusen,  37  Wis.,  54. 

-•:!  United     Brethren     Church    v.  ■■^■'  Oakley  v.  Young,  2  Halst.  Ch., 

Van  nnsen,  37  Wis.,  54;    Oakley  n  453. 


CHAP.  III.]  AGAINST   JUDGMENTS.  271 

injunction  upon  the  ground  of  fraud  against  a  judgment  con- 
fessed by  his  debtor,  and  who  then  proceeds  with  an  action  at 
law  against  the  debtor,  obtains  judgment  and  issues  execu- 
tion, will  be  put  to  his  election  whether  to  stay  execution 
during  the  continuance  of  the  injunction,  or  to  consent  to  a 
dissolution.  And  if  he  refuses  so  to  elect,  the  court  will  dis- 
solve the  injunction,  since  the  effect  of  continuing  it  under 
such  circumstances  would  be  to  give  such  creditor  an  advan- 
tage over  rival  creditors,  whom  he  has  in  the  meantime  delayed 
by  his  injunction.-^ 

§  281.  Judgment  on  note  barred  by  statute  of  limitations  in 
state  where  given.  In  Wisconsin,  it  is  held  to  be  within  the 
power  of  a  court  of  equity,  in  an  action  upon  a  judgment  re- 
covered by  confession  upon  a  cognovit  in  another  state,  to 
re-examine  the  cause  upon  its  merits,  and  to  perpetually  enjoin 
the  plaintiff  from  the  collection  of  his  entire  demand,  if  found 
to  be  not  legally  due.  And  when  a  judgment  note,  with  the 
usual  warrant  of  attorney  to  confess  judgment,  was  given  in 
Wisconsin,  all  parties  to  the  transaction  residing  there,  and 
after  the  note  was  barred  by  the  statute  of  limitations  in 
Wisconsin  it  was  sent  to  Illinois  and  judgment  was  entered 
thereon  by  confession,  and  suit  was  then  brought  on  a  trans- 
cript of  the  judgment  in  Wisconsin,  a  perpetual  injunction 
was  granted  against  the  collection  or  enforcement  of  the  judg- 
ment.-''' 

26  Livingston  v.  Kane,  3  Johns,  set  aside  the  judgment  or  granted 
Ch.,  224.  a   stay  of   proceedings;     and    also 

27  Brown  v.  Parker,  28  Wis.,  21.  upon  the  fact  that  they  construe 
The  opinion  of  the  court  is  based  the  Wisconsin  statute  of  limita- 
upon  the  presumption  that  the  tions  as  not  merely  affecting  the 
court  of  Illinois,  if  its  attention  remedy,  but  as  absolutely  extin- 
had  been  called  to  the  Wisconsin  guishing  the  right  of  action, 
statute  of  limitations,  would  have 


CHAPTER  IV. 

OF   INJUNCTIONS   IN   AID   OF   PROCEEDINGS   IN   BANKRUPTCY. 

§  282.  Proceedings   in   state   courts   enjoined   under  bankrupt  law   of 
1867. 

283.  Bankruptcy   proceedings   equitable   in   their  nature. 

284.  Twenty-first   section   of  the   act  of   1867. 

285.  Limitations   upon    the    jurisdiction. 

286.  When  Injunction  continued  to  hearing. 

287.  Judgment  creditors  in  good  faith  not  affected. 

288.  Sale  of  homestead  under  execution  not  enjoined. 

289.  Effect   of  creditor's   knowledge   of   debtor's   insolvency. 

290.  When  injunction  against  judgment  refused;   when  allowed  in 

behalf  of  assignee. 

291.  Rights  of  assignee  of  bankrupt  as  against  fraudulent  assign- 

ment. 

292.  Receivers  in  state  courts;    effect  of  prior  jurisdiction. 
292a.  Jurisdiction  under  act  of  1898. 

293.  Contempt  of  bankrupt  court. 

294.  When   relief  allowed  as   against  mortagees   of  bankrupt. 

295.  Injunction   against   sale   of  vessel. 

296.  Property   acquired   by   bankrupt   after   adjudication;    effect  of 

discharge;   failure  to  plead  discharge. 

297.  Effect  of  discharge  under  state  insolvent  laws. 

298.  Sale  by  United  States  marshal  of  property  of  third  person  not 

protected. 

299.  Suits   against   bankrupt   pending   composition,   when   enjoined. 

300.  State  court  will  not  enjoin  person  from  taking  benefit  of  bank- 

rupt law. 

301.  Effect  of  false  verification  of  petition  for  injunction. 

302.  Pleadings  informal;   notice  of  motion  for  injunction. 

303.  When   injunction   dissolved  by  final  discharge. 
303a.  No  injunction   during  suspension  of  law. 

I;  282.  Proceeding's  in  state  courts  enjoined  under  bank- 
rupt law  of  1867.  The  jurisdiction  of  the  United  States 
courts  sitting  in  bankruptcy  to  restrain  proceedings  in  the 
state  courts  against  the  estate  of  a  bankrupt,  as  exercised 
under  the  general   Ij.inkfupt  act  of  18(57,   while  that  act  was 

272 


CHAP.  IV.] 


rKOCKHDIXGS    IN     15.\  XKK  l' I'TCY. 


273 


in  force,  though  .sonietiiiies  questioned,  may  be  regarded  as 
having  been  too  clearly  settled  to  admit  of  doubt.^  In  such 
cases  the  United  States  courts  exercised  no  supervisory  juris- 
diction over  proceedings  in  the  state  courts  since  the  state 
court  itself  could  not  be  enjoined,  but  the  litigant  in  that 
tribunal  might  be  restrained  from  doing  what  would  frus- 
trate or  impede  the  jurisdiction  expressly  conferred  by  the 
bankrupt  act.-     It  is  to  be  observed,  however,  that  the  juris- 


1  Irving  V.  Hughes,  2  Bank.  Reg , 
20;  In  re  Wallace,  lb.,  52;  In  re 
Metcalf,  Bank.  Reg.  Sup.,  xliii;  /« 
re  Reed,  lb.,  i;  In  re  Metzler,  lb., 
ix;  In  re  Richardson,  2  Bank.  Reg., 
74;  Samson  v.  Burton,  4  Bank. 
Reg.,  1;  Same  v.  Same,  5  Bank 
Reg.,  459;  In  re  Bowie,  1  Bank. 
Reg.,  185;  Sedgwick  v.  Menck,  lb., 
108;  In  re  Ulrich,  8  Bank.  Reg.,  15; 
Walker  v.  Seigel,  12  Bank.  Reg., 
394;  In  re  Whipple,  13  Bank.  Reg., 
373;  Hewett  v.  Norton,  13  Bank. 
Reg.,  276;  In  re  Mallory,  1  Sawy., 
88.  For  cases  where  the  bankrupt 
courts  have  refused  to  exercise 
the  jurisdiction,  see  In  re  Cooper, 
16  Bank.  Reg.,  178;  Augustine  v. 
McFarland,   13  Bank.  Reg.,  7. 

2  Irving  V.  Hughes,  2  Bank.  Reg., 
20.  But  in  Campbell's  Case,  1  Abb. 
U.  S.  R.,  185,  the  jurisdiction  is 
questioned  and  its  existence  even 
denied,  the  court  insisting  that 
when  the  jurisdiction  of  the  state 
court  and  the  right  of  the  plaintiff 
to  prosecute  his  suit  therein  have 
once  attached,  that  right  can  not 
be  arrested  or  taken  away  by  pro- 
ceedings in  another  court.  McCand- 
less,  J.,  observes:  "The  fact,  there- 
fore, that  an  injunction  issues  only 
to  the  parties  before  the  court,  and 
not  to  the  court  itself,  is  no  evasion 

18 


of  the  difficulties  that  are  the  nec- 
esary  result  of  an  attempt  to  ex- 
ercise that  power  over  a  party  who 
is  a  litigant  in  another  and  inde- 
pendent forum.  It  follows,  there- 
fore, that  this  court  (U.  S.  District 
Court)  has  no  supervisory  power 
over  the  court  of  common  pleas  of 
Armstrong  county  by  injunction  or 
otherwise,  unless  it  is  conferred  by 
the  bankrupt  law.  But  we  can  not 
discover  any  provision  in  that  act 
which  limits  the  jurisdiction  of  the 
state  courts,  or  confers  any  power 
on  the  bankrupt  court  to  supersede 
their  jurisdiction,  or  wrest  prop- 
erty from  the  custody  of  their  offi- 
cers." *  *  *  "Finding  no  such 
grant  of  power,  either  in  direct 
terms  or  by  necessary  implication, 
from  any  of  the  provisions  of  the 
bankrupt  law,  we  are  not  at  liberty 
to  interpolate  it  on  any  supposed 
grounds  of  policy  or  expediency. 
We  shall,  therefore,  be  compelled 
to  dissolve  this  and  all  other  in- 
junctions in  similar  cases."  The 
language  of  the  court,  however,  is 
to  be  taken  in  connection  with  the 
fact  that  in  the  case  under  consid- 
eration an  injunction  was  sought 
against  the  enforcement  of  judg- 
ments of  unquestioned  validity  re- 
covered in  the  state  courts  prior  to 


274  INJUNCTIONS.  [chap.  IV. 

diction  was  not  dependent  upon  or  derived  from  the  fortieth 
section  of  the  general  bankrupt  law  of  1867,  which  provided 
that  the  court  might  restrain  the  debtor  or  any  other  per- 
son from  making  any  transfer  or  disposition  of  the  property 
pending  the  proceedings  for  an  adjudication,  and  that  while 
this  section  impliedly  recognized  the  jurisdiction,  the  pre- 
vious enactments  of  other  sections  conferred  it.  The  pro- 
vision of  the  fortieth  section  was  held  applicable  only  to  the 
preliminary  stage  of  the  proceedings,  and  in  that  stage  it 
dispensed  with  conditions  and  formalities  which  must  other- 
wise have  been  observed.-"' 

§  283.  Bankruptcy  proceedings  equitable  in  their  nature. 
Proceedings  in  bankruptcy  under  the  act  of  1867  were 
regarded  as  in  the  nature  of  equity  proceedings,  and 
the  jurisdiction  of  the  court  in  the  collection  and  distribu- 
tion of  the  bankrupt's  estate  was  in  its  nature  an  equity 
power.  And  the  court  might  enjoin  proceedings  against 
the  property  of  the  bankrupt  under  executions  issued  upon 
judgments  recovered  after  the  filing  of  the  petition,  it  beinp 
the  policy  and  aim  of  the  bankrupt  law  to  compel  an  equal 
distribution  of  the  estate  for  the  benefit  of  all  the  creditors.* 

the    passage    of  the  bankrupt   act,  s  Irving  v.  Hughes,  2  Bank.  Reg., 

and  not  only  to  restrain  the  judg-  20.     As  to  the  right  to  an  injunc- 

ment    creditors    from     proceeding  tion  under  section  40  of  the  act  of 

with  the  enforcement  of  their  liens,  1867,  and   its   duration,   see  In  re 

but  to  enjoin  the  state  court  and  its  Moses,   6   Bank.   Reg.,   181;    In  re 

executive  oflBcers.    As  far  as  appli-  Fendly,    10    Bank.    Reg.,    250;    In 

cable  to  such  a  state  of  facts    the  re  Holland,  12  Bank.  Reg.,  403;  In 

observations  of  the  court  may  be  re  Irving,     14    Bank.    Reg.,    289; 

regarded  as   embodying    the    true  In  re  Skoll,  16  Bank.  Reg.,  175;  In 

doctrine,  but  in  so  far  as  they  deny  re  Fuller,  1  Sawy.,  243;  In  re  Mal- 

the  general  jurisdiction  of  the  Uni-  lory,  1  Sawy.,  88. 

ted  States  courts  in  bankruptcy  to  ^  In  re  Wallace,  2  Bank.  Reg.,  52. 

restrain  proceedings  in  the    state  "It  is  the  duty  of  this  court,"  ob- 

courts  against    the    estate   of    the  serves    Deady,    J.,    "by    means    of 

bankrupt  subsequent  to  the  filing  the   jurisdiction    given    it,   to   pre- 

of  his  petition,  they  are  opposed  to  serve  and  distribute  the  estate  of 

the  clear  weight  of  authority.     See  the  bankrupt  among  his  creditors, 

note  1,  §  282,  ante.  as  the  act  prescribes.  The  respond- 


CHAP.  IV.] 


PROCEEDINGS    IX    BANKRUPTCY. 


275 


§  284.  Twenty-first  section  of  the  act  of  1867.  The  twenty- 
first  section  of  the  general  bankrupt  act  of  1867,  providing  for 
a  stay  of  proceedings  in  all  actions  at  law  or  in  equity  against 
the  bankrupt  pending  the  question  of  his  discharge  was  held 
applicable  to  all  cases  where  the  personal  liability  of  the 
debtor  was  sought  to  be  fixed  by  a  final  judgment  pending  the 
determination  as  to  his  discharge.  And  the  intent  of  the  sec- 
tion being  to  prevent  a  race  of  diligence  between  creditors 
and  to  protect  the  bankrupt  from  being  harassed  with  suits 
pending  the  question  of  his  discharge,  proceedings  in  the  state 
courts  would  be  enjoined  until  that  question  could  be  deter- 
mined.^   But  the  jurisdiction  conferred  by  the  twenty-first  sec- 


ents,  by  means  of  these  executions, 
are  attempting  to  prevent  this  dis- 
tribution of  the  estate.  An  in- 
junction is  a  proper  remedy  or 
means  to  prevent  this  wrong  and" 
fraud  upon  the  law  from  being  ac- 
complished. A  petition  to  the 
court  is  the  proper  means  of  invok- 
ing this  power." 

5  In  re  Metcalf,  Bank.  Reg.  Sup., 
xliii.  Say  the  court,  Benedict,  J.; 
"The  twenty-first  section  of  the 
bankrupt  act  declares  that  'no 
creditor  whose  debt  is  provable 
under  this  act  shall  be  allowed  to 
prosecute  to  final  judgment  any 
suit  at  law  or  in  equity  therefor 
against  the  bankrupt  until  the 
question  of  the  debtor's  discharge 
shall  have  been  determined.'  This 
is  a  very  clear  provision,  the  ob- 
ject of  which  is  to  prevent  a  race 
of  diligence  between  creditors,  and 
to  protect  the  bankrupt  from  being 
harassed  with  suits  pending  the 
question  of  his  discharge.  It 
seems  to  apply  to  all  cases  where 
the  personal  liability  of  the  debtor 
is  sought  to  be  fixed  or  ascertained 


by  a  final  judgment  pending  the 
determination  of  the  question  of 
his  discharge,  and,  in  my  opinon, 
it  applies  to  a  case  like  the  present, 
where  an  action  against  the  bank- 
rupt is  pending  in  th§  Court  of  Ap- 
peals of  the  state  to  which  an  ap- 
peal has  been  taken  by  the  bank- 
rupt prior  to  the  filing  of  the  peti- 
tion in  bankruptcy.  In  such  a  case 
there  is  no  final  judgment  within 
the  meaning  of  the  bankrupt  act; 
the  debtor's  liability  has  not  been 
finally  determined;  and  there  be- 
ing no  final  judgment,  the  bank- 
rupt act  declares  that  the  suit 
shall  stop,  pending  the  determin- 
ation of  the  question  of  the  bank- 
rupt's discharge.  This  option  to 
endeavor  to  obtain  a  discharge  in 
bankruptcy,  and,  failing  in  that, 
to  defend  all  undetermined  per- 
sonal actions,  is  a  right  given  a 
debtor  by  the  bankrupt  act  under 
the  Constitution  of  the  United 
States,  and  he  is  entitled  to  be 
protected  in  that  right  by  this 
court." 


276  INJUNCTIONS.  [chap.  IV. 

tion  of  the  bankrupt  act  did  not  extend  to  the  enjoining  of 
proceedings  against  the  bankrupt  in  any  other  district  than 
that  in  which  the  proceedings  in  bankruptcy  were  pending, 
and  the  United  States  district  court  had  no  power,  either  under 
the  act  of  1867  or  independent  of  that  statute,  to  restrain 
proceedings  in  the  courts  of  the  state  by  reason  of  bank- 
rupt proceedings  pending  in  another  district  and  before 
another  court.*^  And  under  section  720  of  the  Revised  Stat- 
utes of  the  United  States  prohibiting  the  granting  of  injun- 
tions  by  courts  of  the  United  States  to  stay  proceedings  in 
any  court  of  a  state  except  when  authorized  by  any  law  relat- 
ing to  proceedings  in  bankruptcy,  it  has  been  held  that  a 
circuit  court  of  the  United  States  has  no  jurisdiction  to  re- 
strain a  levy  upon  the  property  of  a  bankrupt  under  a  judg- 
ment recovered  in  a  state  court  after  the  filing  of  the  petition 
in  bankruptcy." 

§  285.  Limitations  upon  the  jurisdiction.  While  the  juris- 
diction of  the  United  States  courts  sitting  in  bankruptcy  to 
restrain  proceedings  against  the  estate  of  the  bankrupt  in  the 
state  courts  is  well  established,  these  courts  will  not  in  the 
exercise  of  this  their  unquestioned  prerogative,  withdraw  cases 
from  the  state  courts  into  their  own  forum  and  there  deter- 
mine them,  such  a  course  being  clearly  beyond  their  power.^ 
They  may,  however,  enjoin  creditors  who  have  obtained  an 
agreement  with  the  bankrupt  which  is  in  fraud  of  the  law 
and  an  invasion  of  the  rights  of  the  general  creditors,  from 
making  any  use  of  such  agreement.^  Nor  will  these  courts 
permit  the  creditor  to  proceed  with  a  suit  in  the  state  courts, 
the  effect  of  which  would  be  to  allow  him  to  reap  the  advan- 
tage of  his  fraudulent  agreement  from  the  use  of  which  he 
has  already  been  enjoined,  and  an  injunction  will  be  granted 

« In  re  Richardson,  2  Bank.  Reg.,  *<  Samson    r.     Burton,     4    Bank. 

74.  Reg.,  1. 

TTifft   r.   Iron  Clad  Mfg.  Co.,  16  old. 
Blatch.,  48. 


CHAT.  IV.] 


rKOCEEDINGS    IN    BAXKEUPTCY. 


277 


to  restrain  him  from  proceeding  Avith  such  suit,  the  question 
being  peculiarly  within  the  jurisdiction  of  a  court  of  bank- 
ruptcy.^" 

§  286.  When  injunction  continued  to  hearing.  Where 
creditors  filed  their  petition  for  an  adjudication  of  bankruptcy 
against  their  debtors,  upon  the  ground  of  having  made  pre- 
ferred assignments  and  of  having  confessed  judgment  with 
intent  to  give  certain  creditors  preference  over  others  and  an 
injunction  was  allowed  to  restrain  proceedings  under  the 
assignments  and  upon  the  judgments,  such  injunction  would 
not  be  dissolved  until  the  determination  of  the  question  of  the 
debtor's  bankruptcy.  The  intent  of  the  fortieth  section  of  the 
act  being  to  prevent  any  interference  with  the  debtor's  prop- 
erty until  a  decision  should  be  reached  upon  the  question  of 
bankruptcy,  the  injunction  would  be  continued  until  such 
decision.^  ^ 


10  Samson  v.  Burton,  4  Bank. 
Reg.,  1. 

11  In  re  Metzler,  Bank.  Reg.  Sup., 
ix.  The  court,  Blatchford,  J.,  con- 
struing the  fortieth  section  of  the 
act  of  1867,  say:  "The  injunctions 
were  granted  under  the  fortieth 
section  of  the  act.  The  intent  ot 
the  provisions  of  that  section  man- 
ifestly is,  to  give  the  court  author- 
ity in  a  case  of  involuntary  bank- 
ruptcy, when  an  order  is  issued 
requesting  the  debtor  to  show  cause 
why  he  should  not  be  declared  a 
bankrupt,  to  prevent  by  injunction 
any  interference  with  the  debtor's 
property  until  a  decision  shall  be 
arrived  at,  whether  the  debtor  is  or 
is  not  to  be  adjudged  a  bankrupt. 
In  the  present  case  no  such  deci- 
sion has  been  arrived  at.  The  deci- 
sion is  suspended  by  the  act  of  the 
debtors  in  denying  that  they  have 
committed  the  act  of  bankruptcy 
alleged,  and  in  demanding  a  trial 


by  jury.  The  same  facts  which 
constituted  sufficient  ground  for 
issuing  the  order  to  show  cause, 
also  furnish  sufficient  reasons  for 
issuing  the  injunction.  The  court 
will  not,  on  a  motion  of  this  kind, 
on  affidavits,  dispose  of  what  are 
really  all  the  issues  involved  in  the 
proceeding.  If  the  injunctions 
should  be  dissolved,  and  the  debt- 
ors should  afterward  be  adjudged 
bankrupts  and  an  assignee  of  their 
estate  be  appointed,  the  court 
would  have  dissolved  the  injunc- 
tions on  the  same  state  of  facts  on 
which  the  debtors  were  adjudged 
bankrupts.  Substantially  the  whole 
of  the  property  of  the  debtors 
would  have  passed  to  the  three 
preferred  creditors,  leaving  to  the 
assignee  only  an  inheritance  of  lit- 
igation; and  the  very  object  of  the 
remedy  by  injunction  given  by  the 
fortieth  section  would  have  been 
defeated." 


278  INJUNCTIONS.  [chap.  IV. 

§  287.  Judgment  creditors  in  good  faith  not  affected.  It 
is  to  be  observed  that  the  bankrupt  law  of  1867  in  no  manner 
impaired  the  rights  of  judgment  creditors  whose  liens  upon 
the  bankrupt's  property  were  acquired  in  good  faith  and  with- 
out fraud  before  the  passage  of  the  act,  or  before  the  filing  I 
of  the  petition.  The  rights  of  judgment  creditors  who,  by  the 
use  of  diligence  and  "without  fraud  or  collusion,  secured  their 
debts  as  a  lien  upon  the  property  of  the  debtor  prior  to  the 
filing  of  his  petition  in  bankruptcy,  remained  intact,  and 
the  bankrupt  court  would  not  enjoin  them  from  the  enforce- 
ment of  those  rights.^  2  Thus,  where  creditors  acting  in  good 
faith  obtained  judgments,  issued  executions  and  levied  upon, 
the  personal  property  of  their  debtor  prior  to  the  filing  of 
his  petition,  and  where  it  did  not  appear  that  the  property 
levied  upon  was  more  than  the  amount  of  the  judgments,  or 
that  a  sale  by  the  assignee  would  realize  more  than  a  sale  by 
the  sheriff  under  execution,  and  it  not  appearing  that  any 
advantage  would  result  to  the  creditors  by  retaining  an  in- 
junction against  such  sale,  the  injunction  was  dissolved.^^ 

§  288.  Sale  of  homestead  under  execution  not  enjoined.  A 
creditor  who  has  obtained  judgment  and  issued  execution 
against  his  debtor  before  the  filing  of  his  petition  in  bank- 
ruptcy will  not  be  restrained  from  selling  property  clafmed  by 
the  bankrupt  as  a  homestead,  since  if  such  property  is  in 
fact  a  homestead  the  title  thereto  is  unaffected  by  the  opera- 
tion of  the  bankrupt  act,  and  the  bankrupt,  if  wrongfully 
deprived  of  his  homestead,  has  his  remedy  in  the  state  courts.^* 

§  289.    Effect  of  creditor's  knowledge  of  debtor's  insolvency. 

The  question  of  the  creditor's  knowledge  of  his  debtor's  cir- 
cumstances at  the  time  of  obtaining  judgment  is  not  with- 
out weight  in  determining  whether  he  shall  be  enjoined  from 
pursuing  his  judgment   in  the   state   courts.     And   when  the 

1-!  Campbell's  Case,  1  Abb.  U.  S.  i;'  In  re  vVilbur,  3  Bank.  Reg.,  71. 
R.,  185;  In  re  Wilbur,  3  Bank.  Reg.,  "/n  re  Hunt,  5  Bank.  Reg.,  493. 
71. 


CHAP.  IV.]  PROCEEDINGS    IN    BANKRUPTCY.  279 

creditor,  at  the  time  of  obtaining  judgment  and  execution  and 
levying  upon  the  property  of  his  debtor,  had  sufficient  cause 
to  believe  that  he  was  insolvent  and  that  he  permitted  him  to 
obtain  judgment,  execution  and  levy  with  intent  to  give  a 
preference  within  the  meaning  of  the  bankrupt  act,  the  court 
will  refuse  to  dissolve  an  injunction  restraining  such  creditor 
from  selling  the  property .^^  So  where  a  creditor,  having  rea- 
sonable cause  to  believe  his  debtor  to  be  in  an  insolvent  con- 
dition, attached  his  property  and  after  obtaining  judgment 
against  him  by  default  seized  his  real  estate  on  execution,  the 
debtor  having  filed  his  petition  in  bankruptcy  before  the  com- 
pletion of  the  levy,  the  assignee  was  allowed  to  enjoin  the 
creditor  from  proceeding  with  a  sale  of  the  estate,  the  attach- 
ment having  been  levied  within  four  months  prior  to  the  com- 
mencement of  the  proceedings  in  bankruptcy.^*' 

§  290.  When  injunction  against  judgment  refused ;  when 
allowed  in  behalf  of  assignee.  Equity  will  not  enjoin  a  judg- 
ment at  law  upon  the  ground  that  the  court  of  law  has  no 
jurisdiction  over  the  matter  in  controversy,  by  reason  of  the 
pendency  of  proceedings  in  bankruptcy  against  the  judgment 
debtor  at  the  commencement  of  that  action,  of  which  plain- 
tiff in  such  action  was  duly  notified ;  since  if  the  court  of  law 
had  no  jurisdiction  its  judgment  is  void,  and  there  is  sufficient 
remedy  at  law  for  its  attempted  enforcement.^'''  And  an 
injunction  has  been  refused  in  behalf  of  an  assignee  in  bank- 
ruptcy seeking  to  restrain  a  judgment  creditor  of  the 
bankrupt  from  selling  his  real  estate  under  execution,  the 
judgment  having  been  recovered  prior  to  the  proceedings 
in  bankruptcy.^  ^  So  an  assignee  in  bankruptcy  can  not  main- 
tain a  bill  to  set  aside  a  sale  by  the  bankrupt,  and  to  restrain 
the  purchaser  from  prosecuting  an  action  of  trespass  in  a 
state  court  against  attaching  creditors  for  having  seized  the 

15  In  re  Bloss,  4  Bank.  Reg.,  37.         it  Hart  r.  Lazaron,  46  Ga.,  396. 

16  Haskell  r.  Ingalls.  5  Bank.  '-^Reeser  v.  Johnson,  76  Pa.  St., 
Reg.,  205.  313. 


280  INJUNCTIONS.  [chap.  IV. 

goods  sold,  when  the  property  has  already  come  into  the  pos- 
session of  the  assignee  and  he  is  not  a  party  to  the  proceed- 
ings in  the  state  court.^^  But  a  state  court  may  properly  en- 
tertain a  bill  for  an  injunction  in  behalf  of  an  assignee  in 
bankruptcy  in  the  United  States  court,  seeking  to  restrain  the 
collection  of  judgments  against  the  bankrupt  in  fraud  of  the 
rights  of  his  creditors,  the  assignee  being  regarded  as  vested 
with  all  the  rights  in  that  behalf  of  creditors  themselves.^o 

§  291.  Rights  of  assignee  of  bankrupt  as  against  fraudulent 
assignment.  Since  the  property  of  the  bankrupt  assigned 
under  the  act  of  1867  vested  in  the  assignee  for  the  benefit 
of  all  the  creditors,  it  was  held  that  he  might  properly  enjoin 
all  proceedings  in  the  state  courts  relative  to  such  property, 
which  were  had  under  an  assignment  in  fraud  of  creditors.^^ 
And  where  a  debtor  had  made  a  voluntary  assignment  for  the 
benefit  of  his  creditors,  which  was  a  fraud  upon  the  bankrupt 
law  and  an  act  of  bankruptcy,  his  assignee  in  bankruptcy  was 
allowed  to  enjoin  the  assignee  under  such  voluntary  assign- 
ment from  taking  the  property.^-  So  an  assignee  in  bank- 
ruptcy^, upon  a  bill  filed  by  him  in  the  United  States  circuit 
court  to  set  aside  fraudulent  sales  and  transfers  of  his  prop- 
erty made  by  the  debtor,  has  been  allowed  an  injunction  pen- 
deiiie  lite  to  restrain  the  prosecution  of  suits  in  the  state  courts 
by  persons  claiming  the  propert}^,  such  relief  being  regarded 

^■>  Main  r.  Bromley,  10  Biss.,  199.  a  petition  to  enjoin  proceedings  in 

20  Barnard  v.  Davis,  54  Ala.,  565.  the    state   courts   by  creditors   for 

As  to  the  right  to  enjoin  a  judg-  the  enforcement  of  their  judgment 

ment   creditor   from   selling   prop-  liens  could  be  brought  only  by  the 

erty  of  the  bankrupt  under  execu-  bankrupt  himself;   while  after  the 

tion,  under  section  40  of  the  act  of  appointment     of     assignees,     they 

1867,  see  In  re  Lady  Bryan  Mining  were  the  proper  parties   to  apply 

Co.,  6  Bank.  Reg.,  252;  In  re  Mai-  for  relief,     hi  re  Bowie,  1   Bank, 

lory,  1  Sawy.,  88.    As  regards  the  Reg.,  185. 

parties   who    might    institute    the  -i  Sedgwick    v.   Menck,   1    Bank, 

proceedings,  under  the  act  of  1867,  Reg.,  108. 

it  was  held  that  before  the  appoint-  2:.'  in  re  Skoll,  16  Bank.  Reg.,  175. 
ment  cf  an  assignee  in  bankruptcy 


CHAP.  IV.]  PROCEEDINGS    IN    BANKRUPTCY.  281 

as  incidental  to  the  main  object  of  the  suit.--^  But  in  the  case 
of  a  third  person  claiming  absolute  title  to  the  matter  in  contro- 
versy as  against  the  assignee  in  bankruptcy,  the  bankrupt 
court  has  refused  to  interfere  by  injunction  upon  a  summary 
application  in  the  bankrupt  proceedings  upon  the  ground  that 
a  new  and  independent  suit  was  necessary  to  determine  such 
conflicting  questions  of  title.^*  But  under  the  English  bank- 
rupt act  of  1869,  the  court  of  bankruptcy,  has  jurisdiction 
in  a  summary  method  to  restrain  a  person  not  a  party  to  the 
proceedings  from  dealing  with  property  alleged  to  have  been 
fraudulently  assigned  before  the  bankruptcy.-'' 

§  292.  Receivers  in  state  courts ;  effect  of  prior  jurisdiction. 
If  the  property  and  effects  of  a  debtor  have  already  passed 
into  the  hands  of  receivers  appointed  by  a  state  court,  which 
has  properly  acquired  jurisdiction  of  the  subject-matter  and  of 
the  parties  before  proceedings  in  bankruptc}^  are  instituted 
against  the  debtor,  the  bankrupt  court  will  not  interfere  by 
injunction  with  the  possession  of  the  property  by  such  receivers, 
nor  divest  such  possession  in  behalf  of  the  assignee  in  bank- 
ruptcy. And  the  fact  that  the  receivers  of  the  state  court  assert 
a  prior  jurisdiction  acquired  by  that  tribunal  affords  no  ground 
for  the  interference  of  the  bankrupt  court,  when  it  is  not  shown 
that  the  property  is  in  danger  of  waste  or  loss,  or  that  the 
receivers  are  guilty  of  any  misconduct.  Nor,  indeed,  has  the 
bankrupt  court  any  such  superior  jurisdiction  or  supervisory 
control  over  the  state  tribunal  as  to  warrant  it  in  divesting  the 
l)ossession  of  such  receivers,  or  in  enjoining  them  from  the  man- 
agement of  the  property,-^    And  the  bankrupt  court  may,  in 

23  Kellogg  V.  Russell,  11  Bank.  -•'•  Ex  parte  Anderson,  L.  R.  5 
Reg.,  121;    S.   C,   11   Blatch.,   519;      Ch.,  473. 

Hudson  V.  Schwab,  18  Bank.  Reg.,  -«  Beecher  v.  Bininger,  7  Blatch.. 

480.  170;   In  re  Clark  and  Bininger,  4' 

24  Smith  V.  Mason,  14  Wal.,  419.  Benedict,  88;  In  re  Clark,  3  Bank. 
And  see  Wilson  v.  Childs,  8  Bank.  Reg.,  130.     And  see  Alden  v,  Bos- 
Reg.,  527;  In  re  Marter,  12  Bank,  ton,  5  Bank.  Reg.,  230.       But  see 
Reg.,     185;    In     re    Oregon     Iron  Piatt  v.  Archer,  9  Blatch.,  559. 
Works,  17  Bank.  Reg.,  404;   S.  C, 

4  Sawy.,  169. 


282  INJUNCTIONS.  [chap.  IV. 

such  case,  enjoin  the  bankrupts  from  interfering  with  the  prop- 
erty in  the  possession  of  the  receivers.^'^  If,  however,  the  bank- 
rupt court  has  first  acquired  possession  of  the  debtor's  prop- 
erty, it  may  enjoin  the  creditors  from  further  proceedings  in 
the  state  courts.  Thus,  where  after  the  filing  of  a  creditor's  bill 
and  the  appointment  of  receivers  in  a  state  court,  the  debtor 
files  his  petition  in  bankruptcy  and  is  adjudicated  a  bankrupt, 
and  delivers  possession  of  his  assets  to  the  officer  of  the  bank- 
rupt court,  the  receivers  in  the  state  courts  having  obtained 
possession  of  no  assets,  the  creditors  may  be  enjoined  from 
further  proceedings  in  their  suits,  reserving  all  questions  as 
to  the  priorities  which  they  may  have  obtained  by  their  pro- 
ceedings in  the  state  courts.^^ 

§  292  a.  Jurisdiction  under  act  of  1898.  The  jurisdiction  of 
the  United  States  courts  under  the  bankrupt  law  of  1898  and 
its  amendments  is  considerably  narrowed  as  compared  with 
that  of  the  earlier  acts  of  1841  and  1867.  By  the  first  clause  of 
§  23  of  this  act,  the  jurisdiction  of  the  United  States  circuit 
courts  in  controversies  at  law  or  in  equity,  as  distinguished  from 
proceedings  in  bankruptcy,  between  trustees  as  such  and  ad- 
verse claimants  to  the  bankrupt's  estate,  is  expressly  confined  to 
those  cases  and  those  only  in  which  the  jurisdiction  would  have 
existed  had  no  bankruptcy  proceedings  been  instituted  and 
the  controversy  had  been  between  the  bankrupt  and  such 
adverse  claimants.  And  the  second  clause  of  §  23  is  held  to 
limit  the  jurisdiction  of  all  courts,  including  the  United  States 
district  courts,  over  independent  suits  brought  by  the  trustee 

27  In  re  Clark  and  Bininger,  4  petition  of  the  assignees  under 
Benedict,  88.  In  Freeman  v.  Fort,  proceedings  in  bankruptcy  subse- 
52  Ga.,  371,  it  was  held  that  where  quently  instituted,  and  that  it 
a  state  court,  upon  an  ordinary  would  not  surrender  the  assets 
creditor's  bill,  had  enjoined  the  dis-  until  the  bankrupt  court  had  en- 
position  of  the  debtor's  property  joined  the  creditors  from  proceed- 
and  had  taken  possession  of  his  es-  ing  in  the  state  court.  See  also 
tate  through  its  receiver,  it  would  Seligman  v.  Ferst,  57  Ga.,  561. 
not  abandon  its  jurisdiction  and  -^  In  re  Whipple,  13  Bank.  Reg., 
surrender  the  assets  merely  upon  373. 


CHAP.  IV.]  PROCEEDINGS    IN    BANKRUPTCY.  283 

concerning  property  of  the  bankrupt ;  such  suits  being  limited, 
except  with  the  consent  of  the  bankrupt,  to  courts  where  the 
latter  might  himself  have  brought  or  prosecuted  such  suits  had 
no  bankruptc}^  proceedings  been  commenced.-''    But  under  the 
provision  of  the   fifteenth   clause  of  §  2  of  act   of  1898,   the 
bankrupt  court  as  such  has  jurisdiction,  by  summary  process, 
to  restrain  actions  in  state  courts  concerning  property  of  the 
bankrupt  or  any  other  disposition  of  or  interference  with  the 
bankrupt's  estate  which  would  be  void  under  the  provisions 
of  the  law  and  would  render  its  provisions  nugatory .^^^    Thus, 
where,  after  an  adjudication  of  bankruptcy,  an  action  of  re- 
plevin has  been  commenced  in  a  state  court  against  a  bank- 
rupt to  recover  possession  of  property  claimed  by  him  at  the 
time  of  the  adjudication  and  in  the  possession  of  the  referee 
at  the  time  the  action  was  commenced,  the  prosecution  of  such 
action  will  be  enjoined.^^    So  where  an  insolvent  has  made  a 
general  assignment  for  the  benefit  of  his  creditors  under  the 
laws  of  the  state  within  four  months  of  the  filing  of  a  petition 
against  him,  such  assignment  being  void  under  the  provisions 
of  the  bankrupt  law,  the  bankrupt  court  may  properly  enjoin 
a  sale  or  other  disposition  of  the  bankrupt's  estate  by  the  as- 
signee.^^   So  where  attachment  suits  have  been  instituted  in  a 
state  court  which  are  void  under  the  terms  of  the  bankrupt 
law  and  would  result  in  an  illegal  preference,  the  attaching 
creditors  may  be  restrained  from  prosecuting  their  suits  in  the 
state  court.^^    So  a  trustee  in  bankruptcy,  being  in  possession 

29  30  Stat,  552;  Bardes  v.  Ha-  C.  C.  A.,  182,  99  Fed.,  920;  In  re 
warden  Bank,  178  U.  S.,  524,  20  Chambers,  Calder  &  Co.,  98  Fed., 
Sup.    Ct.   Rep.,    1000;    Mitchell    v.     865. 

McClure,  178  U.  S.,  539,  20  Sup.  Ct.  si  White  v.  Schloerb,  178  U.   S., 

Rep.,  1000;  Hicks  v.  Knost,  178  U.  542,  20  Sup.  Ct.  Rep.,  1007. 

S.,  541,  20  Sup.  Ct.  Rep.,  1006.  32 /%  re  Gutwillig,  34  C.    C.    A., 

30  White  V.   Schloerb,  178  U.  S.,  377,  92  Fed.,  337;    Davis  v.  Bohle, 
542,  20  Sup.  Ct.  Rep.,  1007;   In  re  34  C.  C.  A.,  372,  92  Fed.,  325. 
Gutwillig,  34  C.  C.  A.,  377,  92  Fed.,  ss  Bear  v.  Chase,  40  C.  C.  A.,  182, 
337;    Davis   v.  Bohle,  34  C.  C.  A.,  99  Fed.,  920. 

372,  92  Fed.,  325;  Bear  v.  Chase,  40 


284  INJUNCTIONS.  [chap.  IV, 

of  certain  premises  and  there  engaged  in  conducting  the  l)usi- 
ness  of  the  bankrupt,  may  enjoin  an  action  of  ejectment 
brought  against  him  in  a  state  court  for  the  recovery  of  the 
possession  of  such  premises,  the  landlord,  in  such  ease,  being 
compelled  to  look  to  the  bankruptcy  court  for  the  protection  of 
his  rights.^^  In  some  cases,  however,  the  bankruptcy  court  has 
refused  to  enjoin  the  enforcement  of  judgments  rendered 
against  a  bankrupt  in  a  state  court  prior  to  the  institution  of 
bankruptcy  proceedings;  the  federal  court,  in  such  case,  act- 
ing upon  principles  of  comity  and  out  of  regard  for  the  prior 
acquired  jurisdiction  of  the  state  court.^^  And  where  an 
action  in  a  state  court  concerning  the  property  of  a  bankrupt 
has  been  commenced  more  than  four  months  prior  to  the  insti- 
tution of  bankruptcy  proceedings  and  is  there  proceeding  to 
judgment,  the  prosecution  of  such  action  or  the  enforcement  of 
a  judgment  rendered  therein  will  not  be  enjoined  by  the  bank- 
ruptcy court.3<5 

§  293.  Contempt  of  bankrupt  court.  A  judgment  creditor 
in  a  state  court,  being  enjoined  in  proceedings  in  bankruptcy 
from  selling  the  debtor's  property,  after  an  adjudication  in 
bankruptcy,  has  been  attached  for  contempt  in  selling  in  dis- 
regard of  the  injunction."''"  So  a  bankrupt  who  received  money 
from  his  debtor  after  the  filing  of  a  petition  in  bankruptcy  and 
after  an  injunction  against  him  has  been  found  guilty  of  con- 
tempt.^* 

'^i  m  re  Chambers,  Calder  &  Co.,  ^s /«  re  Hayden,  7   Bank.  Reg., 

98  Fed.,  865.  192.     But  it  was  held  in  this  case 

•■i5  In  re  Seebold,  45  C.  C.  A.,  117,  that    the    bankrupt    might     purge 

105  Fed.,  910;  /w  re  Shoemaker,  112'  himself  of  contempt  by  turning 
Fed.,  648;  In  re  Wells,  114  Fed.,  over  all  his  assets  to  his  assignee. 
222.  As  to  the  punishment  for  violating 

:tG  Frazier   (;.  Southern    L.  &    T.  an    injunction    restraining   attach- 

Co.,  40  C.  C.  A.,  76,  99  Fed.,  707;  ing  creditors  of  a  bankrupt  from 

Pickens  r.  Dent,  45  C.  C.  A.,  522,  proceeding  with  their  attachments, 

106  Fed.,  65S.  see   Hyde     (\    Bancroft,     8     Bank. 
■■''In  re  Atkinson,  7  Bank.  Reg.,  Reg.,  24. 

143. 


CHAP.  lY.]  PROCEEDINGS    IX    BANKRUPTCY.  285 

§  294.  When  relief  allowed  as  against  mortgagees  of  bank- 
rupt. Relief  by  injunction  lias  been  allowed  in  behalf  of  an 
assignee  in  bankruptcy  to  restrain  mortgagees  from  proceed- 
ing at  law  to  foreclose  a  mortgage  given  by  the  bankrupt 
before  the  commencement  of  proceedings  in  bankruptcy,  upon 
the  ground  that  it  was  the  duty  of  such  secured  creditor  to 
bring  the  property  into  court  to  be  distributed  by  the  as- 
signee.^^  And  wdiere  a  sale  by  mortgagees  of  chattels  mort- 
gaged to  them  by  the  bankrupt  previous  to  filing  his  petition 
Avould  injuriously  affect  the  rights  of  the  creditors  by  sacri- 
ficing the  value  of  the  property,  there  being  a  controversy 
concerning  the  right  of  the  assignee  to  redeem,  a  temporary 
injunction  may  be  allowed  pending  such  controversy  to  pre- 
vent the  mortgagees  from  selling  under  the  power  of  sale.'*'^ 
But  the  bankrupt  court  has  refused  to  enjoin  the  holder  of 
a  mortgage  from  proceeding  with  a  foreclosure  suit  when  no 
advantage  could  result  to  the  estate  of  the  bankrupt  from 
such  interference,  the  equity  of  redemption  being  of  no  value, 
and  neither  the  assignee  nor  any  of  the  creditors  invoking  the 
aid  of  the  court. ^^  And  where  an  assignee  in  bankruptcy  had 
voluntarily  entered  his  appearance  in  a  foreclosure  suit, 
brought  in  a  state  court  after  the  commencement  of  proceed- 
ings in  bankruptcy,  the  bankrupt  court  refused  after  a  sale 
of  the  property  to  restrain  in  behalf  of  the  assignee  further 
proceedings  in  the  state  court."*- 

§  295.  Injunction  against  sale  of  vessel.  Where  a  vessel 
belonging  to  bankrupts  has  passed  with  their  other  assets  into 
the  hands  of  the  assignee,  and  is  afterward  attached  in  pro- 
ceedings in  rem  to  recover  damages  incurred  by  a  collision 
with  another  vessel  prior  to  the  adjudication  of  bankruptcy, 
the  libelants  will  be  restrained  from  holding  the  vessel  or  from 

•■'•'  In  re  Snedaker,  3  Bank.  Reg.,  *]  In    re    Iron    Mountain    Co.,    9 

155;  In  re  Nathan,  92  Fed.,  590.  Blatch.,  320. 

■<"  Foster  r.  Ames,  2  Bank.  Reg.,  +2  Augustine    v.    McFarland,    13 

146.  Bank.  Reg.,  7. 


286 


INJUNCTIONS. 


[chap.  IV. 


interefering  in  any  manner  with  the  property  in  the  hands  of 
the  assignee.  The  possession  of  the  vessel  by  the  assignee  being 
the  possession  of  the  court,  it  can  not  lawfully  be  disturbed, 
and  if  libelants  in  the  collision  suit  have  a  lien  upon  the  vessel 
by  reason  of  the  collision,  it  must  be  submitted  to  the  bank- 
rupt court  which  has  full  power  to  liquidate  such  lien.'*^ 

§  296.  Property  acquired  by  bankrupt  after  adjudication ; 
effect  of  discharge;  failure  to  plead  dischargee.  As  regards 
property  acquired  by  the  bankrupt  after  the  adjudication  and 
pending  proceedings  for  a  final  discharge,  it  is  held  to  be 
within  the  protection  of  the  general  laws  of  the  land,  of 
which  the  bankrupt  law  is  but  a  part.  It  is,  therefore,  compe- 
tent for  the  state  courts  to  restrain  the  coercive  sale  by  a 
creditor  of  the  property  of  the  bankrupt  acquired  after  the 
adjudication,  the  execution  being  upon  a  judgment  for  a 
debt  which  Avas  provable  in  the  court  of  bankruptcy.^^     And 


43  In  re  People's  Mail  Steamship 
Co.,  2  Bank.  Reg.,  170. 

■i-t  Turner  r.  Gatewood,  8  B.  Mon., 
613;  Leonard  v.  Yohnk,  68  Wis., 
587.  The  doctrine  as  laid  down  in 
Turner  v.  Gatewood,  8  B.  Mon.,  613, 
which  was  decided  under  the  bank- 
rupt act  of  1841,  is  that  while  the 
United  States  courts  have  exclu- 
sive jurisdiction  of  proceedings  in 
bankruptcy,  the  state  courts  may 
suspend  such  proceedings  as  are  in- 
consistent therewith,  and  which 
are  attempted  to  be  carried  on 
through  their  instrumentality,  un- 
til the  question  of  the  bankrupt's 
discharge  can  be  determined. 
"There  is  in  such  course,"  say  the 
court,  Marshall,  C.  .1.,  "no  clash- 
ing of  jurisdiction.  The  after-ac- 
quired property  of  the  bankrupt  is 
not  within  the  operation  of  the 
proceeding  in  bankruptcy,  and  cer- 


tainly not  within  the  exclusive 
jurisdiction  of  the  bankrupt  court, 
but  is  left  to  the  protection  of 
the  general  laws  of  the  land,  of 
which  the  bankrupt  law  is  but  a 
part.  And  when  the  creditor  is 
using  the  process  furnished  by 
that  law  to  subject  property  which 
by  the  result  of  a  pending  litiga- 
tion in  another  forum  may  be  de- 
termined not  to  be  liable,  there 
seems  to  be  a  peculiar  propriety  in 
appealing  to  the  ordinary  tribunals 
for  protection.  We  are  satisfied, 
therefore,  that  the  circuit  judges 
of  this  commonwealth,  and  the 
justices  of  the  peace  appointed  for 
the  purpose  within  the  several* 
counties,  have  power  to  grant  in- 
junctions to  prevent,  after  a  decree 
in  bankruptcy  assigning  the  bank- 
rupt's property,  and  In  prospect 
of  his    discharge  by  final    decree 


CHAP.  IV.]  PROCEEDINGS    IN    BANKRUPTCY.  287 

the  effect  of  such  injunction  is  to  render  an  officer  selling  the 
property  with  notice  thereof  a  trespasser  ab  initio,  even  though 
he  may  have  levied  upon  the  property  before  the  granting  of 
the  writ.^^  So  where  a  judgment  debtor  has  been  discharged 
in  bankruptcy,  and  his  sureties  against  whom  judgment  has 
also  been  recovered  have  paid  the  debt,  an  attempt  to  enforce 
the  judgment  against  him  may  be  enjoined.'*^  But  a  judg- 
ment debtor  can  not  enjoin  the  enforcement  of  an  execution 
against  him  upon  the  ground  of  his  discharge  in  bankruptcy, 
when  he  has  failed  to  avail  himself  of  the  bankrupt  proceed- 
ings in  defense  of  the  action  in  which  the  judgment  was  re- 
covered.'*'^ Nor  has  the  bankrupt  court  any  jurisdiction  to 
relieve  against  a  judgment  obtained  against  the  bankrupt  in  a 
state  court,  in  an  action  brought  after  his  adjudication  in 
bankruptcy  in  which  he  has  failed  to  plead  his  discharge.^*^ 

§  297.  Effect  of  discharge  under  state  insolvent  laws.  While 
the  authorities  are  not  altogether  reconcilable  as  to  the  effect 
of  a  discharge  under  the  insolvent  laws  of  a  state  upon  judg- 
ments recovered  against  the  insolvent,  the  better  doctrine 
seems  to  be  that  a  debtor  who  has  obtained  his  discharge  may 
enjoin  proceedings  against  him  to  recover  judgments  upon  his 
former  liabilities.^^     Thus,  where  subsequent  to  his  discharge 

and  certificate,  the  coercive  sale  of  the  debtor  to  enjoin  a  judgment 
his  property  acquired  after  the  as-  rendered  against  him  by  default  af- 
signment  under  an  excution  for  ter  his  discharge  in  bankruptcy, 
a  debt  which  was  provable  in  the  the  cause  of  action  having  been 
bankrupt  court."  But  in  McMur-  proven  against  his  estate  in  bank- 
try  V.  Edgerly,  20  Neb.,  457,  30  N.  ruptcy,  see  Taylor  v.  Fore,  42  Tex., 
W.,  417,  it  is  held  that  the  relief  256. 

should  be  allowed  only  upon  condi-  ^^  In  re  Ferguson,  16  Bank.  Reg., 

tion  of   the   bankrupt    paying   the  530. 

judgment  debt.  •»■•  Starr  v.  Heckart,  32  Md.,  267; 

45  Turner  v.  Gatewood,  8  B.  Mon.,  Carrington  v.  Holabird,    17    Conn., 

613.  530.       But     see,     contra,     Katz  v. 

•»«  Hays  V.  Ford,  55  Ind.,  52.  Moore,   13  Md.,    566,    where    It  is 

4"  Gallaher  v.  Michel,  26  La.  An.,  held  that  a  judgment  at  law  will 

41;    Bowen  v.   Eichel,  91  Ind.,  22;  not  be  enjoined  because  of  the  dis- 

Burke  r.  Pinnell,  93  Ind.,  540.  And  charge    of    the    judgment    debtor 

see,  ante,  §  90.    As  to  the  right  of  under    state    insolvent    laws    pre- 


288  INJUNCTIONS.  [chap.  IV. 

under  the  state  laws,  proceedings  by  scire  facias  are  insti- 
tuted against  the  insolvent  to  revive  a  former  judgment,  and 
without  fault  or  laches  on  his  part  he  is  prevented  from  plead- 
ing his  discharge  as  a  defense  to  the  scire  facias,  equity  will 
enjoin  the  enforcement  of  an  execution  under  the  judgment.^** 

§  298.  Sale  by  United  States  marshal  of  property  of  third 
person  not  protected.  A  United  States  marshal  who,  under  a 
warrant  in  bankruptcy  directing  him  to  take  possession  of  the 
bankrupt's  property,  seizes  property  held  by  a  third  person, 
being  indemnified  by  the  creditors  for  so  doing,  will  not  be 
allowed  to  restrain  proceedings  against  him  in  the  state  courts 
for  the  alleged  tort  in  the  wrongful  taking  of  such  property. 
The  bankrupt  court  will  neither  protect  its  officers  in  the  com- 
mission of  a  tort,  nor  will  it  compel  the  party  injured  to  sub- 
mit his  claim  for  damages  to  that  court  for  adjudication.-^^ 

§  299.  Suits  against  bankrupt  pending  composition,  when 
enjoined.  Pending  proceedings  for  a  composition  in  bank- 
ruptcy, and  until  the  expiration  of  the  time  for  the  debtor  to 
make  the  payments  required  by  the  composition,  it  has  been 
held  proper  for  the  bankrupt  court  to  enjoin  the  prosecution 
of  suits  against  the  debtor  upon  demands  to  which  the  com- 
position extended.^-  But  after  the  lapse  of  the  full  time  pro- 
vided by  the  terms  of  the  composition  for  carrying  it  into  effect, 
the  bankrupt  court  has  refused  to  enjoin  a  creditor  from  prose- 
cuting his  action  in  a  state  court  against  the  bankrupt.'"'-'' 

§  300.  State  court  will  not  enjoin  person  from  taking  bene- 
fit of  bankrupt  law.    Since  Congress  is  vested  by  the  constitu- 

vious  to  the  rendering  of  the  judg-  And  see  Carrington  v.  Holabird,  17 

ment,   even    though    the   cause    of  Conn.,  TOO. 

action     accrued     before     the     dis-  f^i  In  re  Marks,  2  Bank.  Reg.,  175. 

<harge  was  granted.       The     court  ^-  In  re  Hinsdale,  16  Bank.  Reg., 

reach    this    conclusion    upon     tho  550;  In  re  Rodger,  18  Bank.  Reg., 

reasoning  that  while  the  legal  lia-  381.       See   also  In   re   Shafer,   17 

Ijility  to  pay  the  debt  has  ceased,  Bank.   Reg.,  116.       But  see  In   re 

the    moral  ohligalion    remains    as  Tifft,  18  Bank.  Reg.,  78. 

strong  as  before,  and   is  sufficient  •''■!  7n    re    Nebenzahl,    17     Bank, 

to  support  the  judgment.  Reg.,  23. 
•'.<•  Starr   /.    Ilcckart.  .'!2   Md.,  267. 


CHAP.  IV.]  PROCEEDIXGS    IN    BANKRUPTCY.  289 

tiou  with  the  power  to  establish  a  imiform  system  of  bank- 
ruptcy throughout  the  United  States,  a  state  court  will  not 
interfere  by  injunction  to  restrain  a  person  from  availing  him- 
self of  the  benefit  of  the  national  bankrupt  law.'^^ 

§301,  Effect  of  false  verification  of  petition  for  injunction. 
Where,  upon  the  institution  of  involuntary  proceedings  in 
bankruptcy,  the  bankrupts  were  enjoined  from  interfering  with 
their  property,  the  court  dissolved  the  injunction  and  dis- 
missed the  proceedings  in  bankruptcy  upon  it  appearing  that 
the  verification  of  the  petition  was  known  to  be  false  by  the 
petitioning  creditors  when  made.'"'' 

§302.  Pleadings  informal;  notice  of  motion  for  injunction. 
In  exercising  tlie  equity  powers  i)ertainiug  to  a  court  of  bank- 
ruptcy, it  is  not  necessary  that  resort  should  be  had  to  the 
formal  and  plenary  proceedings  usual  in  courts  of  equity,  but 
a  mere  petition  setting  forth  the  facts  and  praying  for  the 
relief  sought  is  sufficient."''^  So  a  motion  to  dissolve  the  in- 
junction is  sufficient  to  raise  the  question  of  its  merits  with- 
out resort  to  the  formality  of  a  demurrer.^'^  Nor  need  notice 
of  the  application  for  the  injunction  be  given  to  the  adverse 
party  unless  directed  by  the  court  or  judge. ■''"'' 

§  303.  When  injunction  dissolved  by  final  discharge.  The 
effect  of  the  final  discharge  of  tlie  bankrupt  is  to  dissolve 
ipso  facto  an  injunction  granted  until  the  discharge  for  the 
purpose  of  restraining  creditors  from  proceeding  against  the 
bankrupt  in  the  state  courts.     It  follows,  therefore,  that  no 

54  Fillingin  v.  Thornton,  49  Ga.,  equity  in  tlie  Supreme  and  circuit 
384;  S.  C,  12  Bank.  Reg.,  92.  courts  of  tlie  United  States,  and  it 

55  In  re  Keiler,  4  Ab.  New  Cas.,  did  not  affect  the  allowance  of  in* 
150.  junctions  under  the  equity  power 

"S/n  re  Wallace,   2   Bank.   Reg.,  conferred  upon  the  district  courts 

52.  by  the  bankrupt  act  in  relation  to 

^^  Id.  matters  exclusively  within  the  ju- 

58  Id.    The  restriction  in  the  act  risdiction    of   the    bankrupt   court. 

of  1793,  forbidding  the  issuing  of  See   also    In    re   Muller,     3     Bank. 

injunctions     without     notice,    was  Reg.,  86. 

held  applicable    only    to    suits    in 
19 


290  INJUNCTIONS.  [chap.  IV. 

motion  is  necessary  for  a  dissolution,  the  order  for  the  dis- 
charge itself  terminating  the  injunction,  and  the  bankrupt 
must  thereafter  use  his  discharge  itself  as  his  protection  in 
all   cases   affected  thereby .^^ 

§  303  a.  No  injunction  during  suspension  of  law.  A  creditor 
can  not  have  an  injunction  during  the  period  of  the  suspen- 
sion of  the  bankruptcy  law  restraining  an  insolvent  debtor 
from  making  a  fraudulent  disposition  of  his  property,  in 
order  that  the  creditor  may,  after  the  expiration  of  the  sus- 
pension,   commence    bankruptcy    proceedings    against    him.^<^ 

69  In  re  Thomas,  3  Bank.  Reg.,  7.        ««  Ellis  v.  Hays  S.  &  L.  Co.,  65 

Kan.,  174,  69  Pac,  165. 


CHAPTER  V. 
OF   INJUNCTIONS  IN  ECCLESIASTICAL  MATTERS. 

§  304.     Religious  trusts  protected  in  equity. 

305.  Violation  of  such  trusts  as  to  use  of  property  enjoined;  the  doc- 

trine illustrated. 

306.  Limitation  upon  the  rule  dependent  upon  question  of  title. 

307.  Distinction   between  ecclesiastical   and   corporate  character  of 

religious  body. 

308.  Equity  will   not  revise  acts  of   church   discipline. 

309.  The  same. 

310.  Decisions  of  ecclesiastical  tribunal  conclusive  as  to  canons  Of 

church. 
310o.  Court  may  determine  jurisdiction  of  tribunal. 

311.  Deposed  minister  enjoined   from  serving. 

312.  Pastor   regularly    chosen    not    enjoined. 

313.  Removal   of    minister   not   enjoined.  j 

314.  Injunctions  against  trustees  and  church  oflScers. 

315.  The  same,  when   refused.  ' 

316.  Disturbance  of  burial  ground  enjoined. 

317.  "When  doctrinal  questions   investigated  in  equity. 

318.  Violation  of  trust  by  one  of  two  religious  bodies  ground  for  in- 

junction. 

319.  Mere  trespass  not  enjoined. 

319o.  Injunction  where  question  of  trust  involved,  ejectment  being 
inadequate. 

320.  Diversion  of   church  property  to  school  purposes  enjoined. 

321.  Pew  holders  not  allowed  to  enjoin  trustees  from  rebuilding. 

322.  Church  property  in  receiver's  hands  protected  by  injunction. 

§  304.  Religious  trusts  protected  in  eqiiity.  The  aid  of 
equity  is  frequently  invoked  for  the  protection  of  religious 
charities,  and  for  the  enforcement  of  trusts  created  by  dona- 
tions of  money  or  property  for  religious  purposes.  The  juris- 
diction in  this  class  of  cases  rests  upon  the  foundation  of 
trusts,  and  may  be  regarded  as  ancillary  to  the  general  juris- 
diction  of  equity   over   that   subject.     In   all   such   charities 

291 


292 


INJUNCTIONS. 


[chap.  V. 


the  courts  will,  if  possible,  give  effect  to  the  iuteutiou  of  the 
donor,  provided  such  intention  is  legal,  and  the  objects  of 
the  trust  being  ascertained,  any  perversion  thereof  or  de- 
parture therefrom  may  be  prevented  by  inj  unction. ^ 

§  305.  Violation  of  such  trusts  as  to  use  of  property  en- 
joined; the  doctrine  illustrated.  In  accordance  with  these 
principles,  it  is  held  that  where  real  estate  is  conveyed  to  the 


1  Kniskern  v.  Lutheran  Church- 
es, 1  Sandf.  Ch.,  439.  In  laying 
down  the  principles  upon  which 
courts  of  equity  interfere  in  this 
class  of  cases,  Sandford,  Assistant 
Vice  Chancellor,  says:  "They  pro- 
ceed on  the  ground  of  a  trust,  and 
their  aim  is  to  ascertain  its  scope 
and  objects  and  to  enforce  its  prop- 
er and  faithful  administration.  The 
jurisdiction  is  environed  with 
greater  difficulties  than  that  over 
the  ordinary  private  trusts  which 
come  under  our  review,  by  reason 
of  the  uncertainty  which  fre- 
quently prevails  as  to  the  precise 
objects  and  intentions  of  the  donor. 
The  inquiry  often  arises  after  a 
great  lapse  of  time,  when  no  living 
witness  can  inform  the  conscience 
of  the  court,  and  when  its  search 
for  truth  must  be  made  in  history, 
and  in  the  controversial  writings  of 
contemporaries  of  the  donor.  The 
course  of  the  administration  of  the 
trust,  and  its  alleged  perversion, 
are  also  frequently  shrouded  in 
mystery  and  involved  in  the  subtle- 
ties of  polemics  and  theology.  Still 
the  court  is  bound  to  exercise  its 
control  over  these  charitable  funds, 
as  well  as  over  the  less  difficult 
class  of  private  trusts.  *  *  In 
the  leading  English  authority,  The 
Attorney-General  /•.  Pearson,  '] 
Merivale,    352,     395.     Lord     Eldon 


decided  that  when  it  appears  to 
have  been  the  intention  of  the 
founder  of  a  trust  for  religious 
worship  that  a  particular  doctrine 
should  be  preached,  it  is  not  in  the 
power  of  the  trustees,  or  of  the  con- 
gregation, to  alter  the  designed 
objects  of  the  institution.  The 
length  and  breadth  of  that  deci- 
sion may  be  the  better  estimated 
from  the  circumstance  that  the 
purpose  declared  in  the  deed  was 
simply  'the  worship  and  service  of 
God.'  And  those  words,  without 
more,  are  deemed  in  England  to 
create  a  trust  for  the  established 
religion.  Yet  on  its  being  clearly 
shown  by  proof  that  the  purpose 
of  the  trust  was  to  maintain  dis- 
senting doctrines,  the  court  de- 
creed that  purpose  to  be  carried 
into  execution.  And  as  there  were 
no  Unitarians  known  among  the 
dissenters  when  the  trust  was  cre- 
ated (A.  D.  1701),  the  Unitarians 
were  excluded  from  the  trust.  (7 
Simons  R.  290,  S.  C.  upon  the  first 
decree.)"  See  also  Miller  v.  Ga- 
ble, 2  Denio,  492;  Baptist  Church 
r.  Witherell,  3  Paige,  296;  Bowden 
r.  McLeod,  1  Edw.  Ch.,  588;  Mc- 
Ginnis  r.  Watson,  41  Pa.  St.,  9; 
Sutter  r.  Trustees,  42  Pa.  St..  503; 
Winebrenner  v.  Colder,  43  Pa.  St., 
244. 


(  IIAI'.  V.J  IN    ECCLESIASTICAL    MATTEKS.  293 

trustees   of   a    reliyious   association,    to    be    forever    afterward 
used  as  a  place  of  religious  worship  according  to  the  doctrines, 
form   and  discipline  of  a   particular  church,   if  the   minister 
and  trustees  allow  ministers  of  a  different  faith,  not  recognized 
by  the  church  prescribed  as  the  standard,  to  use  the  premises, 
they  are  guilty  of  a  departure  from  the  trust  created  by  the 
original  contract,  and  a  court  of  equity  may  properly  inter- 
fere to   prevent  the   premises   being   used   otherwise   than   in 
the  manner  prescribed  by  the  terms  of  the  trust.-     So  where 
property  is  conveyed  to  the  trustees  of  a  religious  body  to 
be  used  for  church  purposes,   and  it  has  been  so  used  for  a 
long  and  uninterrupted  period,  an  unauthorized  use  and  oc- 
cupancy of  the  premises  by  persons  not  members  of  the  re- 
ligious society,  thereby  hindering  and  impeding  the  regular 
occupants  of  the  church,  will  be  enjoined,  such  trespass  being- 
continuous  and  irreparable/'^     So  where  property  is  conveyed 
to  trustees  in  trust  for  a  religious  society  of  a  certain  denomi- 
nation and  is  being  used  by  them  in  accordance  with  the  pro- 
visions of  the  trust,  and  a  majority  of  the  society  withdraw 
and  form  an  organization  of  a  different  denomination,  an  in- 
junction will  lie  to  restrain  the  latter  from  interfering  with 
the  use  and  possession  of  the   church  property  by  the  min- 
ority."^    Indeed,   a  religious  society  is  regarded   in  a   certain 
sense  as  the  trustee  of  a  charity,  and  as  such  peculiarly  with- 
in the  jurisdiction  of  equity  for  the  purpose  of  preventing  a 
diversion   of  the   church   property   from   the   purpose   of  the 
original  endowment.     And  wdiere  property  is  conveyed  to  the 
trustees   of  a   church   organization  for  religious   purposes,    in 
trust  for  the  use  of  the  particular  church,  the  title  to   the 
property  and   the   right   to   its   enjoyment   will   be   protected 
in  those   who    continue   to    act    in    conformity    with   the   laws 
of  the   church   and   who   maintain    their    adherence    thereto. 

2  Attorney-General     r.    Welsh,     4  •'  Gilbert  v.  Arnold,  30  Md.,  29. 

Hare,  572;    Hale  r.  Everett,  53  N.  <  Cape  v.  Plymouth  Church,  117 

H.,  9:    Roshi's  Appeal,- 69  Pa.   St.,  Wis.,  150,  93  N.  W.,  449. 
462. 


294  INJUNCTIONS.  [chap.  V. 

Where,  therefore,  some  of  the  members  take  possession  of  the 
property,  and,  contrary  to  the  constitution  and  discipline  of 
the  church,  select  a  minister  who  is  not  a  member  in  good 
standing  of  the  church  and  not  regularly  elected,  and  close 
the  church  against  its  regular  ministers,  their  action  may  be 
restrained  by  injunction.'^     And  a  society  of  a  religious  sect 
or  denomination  which  becomes  incorporated  under  a  strictly 
denominational  name,  descriptive  of  the  fundamental  doctrines 
of  the  sect  to  which  it  belongs,  will  be  presumed  in  equity 
to  have  been  constituted  for  the  purpose  of  advancing  the 
doctrines  of  that  especial  sect  or  denomination.     And  if  the 
trustees  of  such  a  society  hold  its  property  and  temporalities 
in  trust  for  its  use,  and  the  property  has  been  so  held  for  a 
long  series  of  years  and  used  for  religious  purposes  and  re- 
ligious instruction  in  accordance  only  with  the  tenets  of  that 
particular  sect,  a  court  of  equity  may  properly  enjoin  a  mis- 
application of  the  property  to  the  promotion  of  doctrines  ad- 
verse to  the   denomination  for  whose  benefit  the  trust  was 
created.     It   may,    therefore,    restrain   the    employment    of   a 
minister  to  preach,  or  permitting  any  one  to  preach  in  the 
church,   doctrines  which   are   subversive   of  the   fundamental 
principles  of  the  particular  sect  in  question.^    So  a  minority  of 
the  officers  and  members  of  an  independent  church  may  be 
restrained  from  changing  the  form  of  worship   and  service, 
contrary  to  the  established  usages  and  principles  of  the  church, 
and  against  the  wishes  of  a  majority  of  its  officers  and  mem- 
bers.'^ 

§306.  Limitation  upon  the  rule  dependent  upon  question 
of  title.  To  the  general  rule  as  above  stated,  authorizing  equit- 
able relief  to  prevent  a  diversion  of  church  property  or  tem- 
poralities from  the  purposes  of  the  original  trust,  there  are 
some  important  limitations  deserving  of  special  notice.     And 

■•  Roshi's  Appeal,  69  Pa.  St.,  462.         "  Hale  r.  Everett,  53  N.  H.,  9. 
See  also  Bartholomew  v.  Lutheran         ~  Hackney  v.  Vawter,'    39    Kan., 
Congregation.  35  Ohio  St.,  567.  615,  18  Pac,  699. 


CHAP,  v.]  IN  ECCLESIASTICAL   MATTEKS.  295 

in  the  first  place  it  is  to  be  observed  that  the  right  to  relief 
is  based  largely  upon  the  question  of  title  to  the  church  prop- 
erty, and  when  no  title  is  shown  the  relief  will  be  withheld, 
such  a  case  being  clearly  distinguishable  from  that  of  persons 
claiming  an  equitable  interest  in  property  the  legal  title  of 
which  is  in  the  religious  society  or  its  trustees,  and  who  seek 
to  prevent  its  diversion  from  the  original  trust.  For  example, 
when  a  religious  association,  claiming  to  own  a  church  edifice, 
seeks  to  enjoin  defendants  from  asserting  title  to  the  premises, 
alleging  that  a  fraudulent  and  secret  meeting  of  the  church 
was  held  without  notice,  at  which  it  was  voted  to  convey  the 
property  to  defendants,  and  that  it  was  so  conveyed,  where- 
by complainant  has  been  deprived  of  its  use,  but  it  is  shown 
that  complainant  is  not  in  fact  a  corporation  and  never  held 
any  title  to  the  property,  no  ground  for  equitable  relief  exists 
and  the  bill  will  be  dismissed.^ 

§  307.  Distinction  between  ecclesiastical  and  corporate  char- 
acter of  religious  body.  Another  limitation  upon  the  general 
doctrine  rests  upon  the  distinction  between  the  ecclesiastical 
and  the  corporate  character  of  religious  associations,  and  is 
worthy  of  especial  notice  in  determining  whether  a  proper  case 
is  made  out  to  warrant  the  interference  of  a  court  of  equity. 
Thus,  where  the  trust  as  declared  in  the  deed  conveying  prop- 
erty to  a  religious  society  is  for  the  interests  and  purposes 
of  such  society,  either  for  church  or  burial  purposes,  and  it 
does  not  specify  the  ecclesiastical  connection  of  the  society  or 
attempt  to  perpetuate  any  particular  faith,  the  trustees  take 
the  property  for  the  use  of  the  society  in  its  corporate  rather 
than  in  its  ecclesiastical  capacity.  It  follows,  therefore,  that 
a  majority  of  the  members  of  the  corporate  society  may,  under 
such  circumstances,  change  its  ecclesiastical  relations  or  con- 
nections, as  well  as  the  views  which  shall  be  taught  from  the 
pulpit,  without  subjecting  themselves  to  the  restraining  power 

8  East  Haddam  Central  Baptist  Ecclesiastical  Society,  44  Conn.. 
Church   V.   East   Haddam    Baptist     259. 


296  INJUNCTIONS.  [chap.  v. 

of  a  court  of  equity.'^  Aiicl  the  fact  that  the  society  has  sep- 
arated from  the  church  with  which  it  was  originally  connected 
and  has  united  itself  with  another  denomination  does  not 
constitute  such  a  departure  from  the  purposes  of  the  original 
trust  as  to  authorize  the  interference  of  equity,  the  property 
being  still  held  in  the  same  corporate  capacity.^  ^ 

§  308.  Equity  will  not  revise  acts  of  chiirch  discipline. 
Courts  of  equity,  having  no  ecclesiastical  jurisdiction,  will 
neither  revise  nor  question  the  ordinary  acts  of  church  dis- 
cipline or  the  administration  of  church  government.  Their 
only  power  arising  from  the  conflicting  claims  of  the  parties 
to  the  church  property  and  its  use,  they  will  not  decide  as  to 
the  status  of  membership,  and  will  not  determine  Avhether  mem- 
bers have  been  properly  or  improperly  excommunicated  from 
a  church,  but  accept  the  fact  of  their  expulsion  as  conclusive 
proof  that  they  are  not  members,  and  that,  having  been  ex- 
pelled by  a  vote  of  the  church,  they  are  no  longer  entitled 
to  any  of  the  rights  or  privileges  of  membership.  Thus,  where 
property  has  been  conveyed  in  trust  for  the  use  and  benefit 
of  a  religious  organization,  members  of  the  church  who  have 
been  excommunicated  by  a  vote  of  the  majority,  but  who  still 
insist  on  their  right  to  enjoy  and  use  the  church  property,  and 
who  have  taken  possession  and  made  periodical  use  of  it 
W'ithout  the  consent  and  in  defiance  of  the  main  body  of  the 
members,  may  be  enjoined  from  interfering  with  or  using  the 
property.^' 

■'  Burrel    r.  Associate    Reformed  ^i  Shannon   /■.  Frost,  3   B.   Mon., 

Church,  44  Barb.,  282.  253.        Say    the    court,    Robertson, 

1"  Burrel   v.   Associate  Reformed  C.  J.,:      "As  the  conveyance  from 

Church,  44  Barb..  282.       And     see  Crittenden   was  to  the  use  of  the 

Petty  V.   Tooker,    21    N.     Y.,    267;  Baptist  Church,    as    an  organized 

Robertson  v.  Bullions,  1  Kern.,  243.  body    of    professing    Christians  in 

It  is  to  be  observed,  however,  that  Frankfort,   every   member  of  that 

the  decisions  in  New  York  rest  to  church  has  a  beneficial  interest  in 

a  considerable  extent  upon  the  re-  the    property     thus    conveyed,    so 

ligious  incorporation  laws  of  that  long  as  he  or  she  shall  continue  to 

state.  be  a  member,  but  no  longer.    It  is 


CHAP.  V.J 


IN    ECCLESIASTICAL    MATTERS. 


297 


§  309.  The  same.  'I'he  oii\y  ground  upon  which  civil  courts 
interfere  in  ecclesiastical  cases  being  the  protection  of  civil 
lights,  they  will  not  interfere  with  the  exercise  of  any  dis- 
cretion on  the  part  of  church  authorities  and  will  not  re- 
vise or  correct  the  proceedings  of  ecclesiastical  tribunals.^- 
And  an  injunction  will  not  be  granted  to  restrain  a  bi.shop 
of  a  church  from  prosecuting  the  sentence  of  an  ecclesiastical 
tribunal  deposing  a  minister  from  his  calling,  a  court  of  equitj' 
refusing  under  such  circumstances  to  review^  the  action  of 
the  church  tribunal  any  further  than  to  ascertain  whether,  ac- 
cording to  the  law  of  the  church,  such  tribunal  had  juris- 
diction in  the  premises.^^  And  where  complainant  has  by  his 
own  conduct  w^aived  all  right  to  object  to  the  authority  of  the 


only  as  a  constituent  element  of 
the  aggregated  body  or  church  that 
any  person  can  acquire  or  hold,  as 
a  cestui  que  trust,  any  interest  in 
the  property  thus  dedicated  to  that 
church.  Curd  et  al.  v.  Wallace  et 
al.,  7  Dana,  195.  Such  is  the  effect 
of  this  conveyance  to  congrega- 
tional uses,  and  such  the  civil  law 
of  our  state;  and  upon  this  founda- 
tion alone  must  our  decision  rest. 
The  judicial  eye  of  the  civil  au- 
thority of  this  land  of  religious 
liberty  can  not  penetrate  the  veil 
of  the  church,  nor  can  the  arm  of 
this  court  either  rend  or  touch  that 
veil  for  the  forbidden  purpose  of 
vindicating  the  alleged  wrongs  of 
the  exscinded  members.  When 
they  became  members,  they  did  so 
on  the  condition  of  continuing  or 
not,  as  themselves  and  their  church 
might  determine.  In  that  respect 
they  voluntarily  subjected  them- 
selves to  the  ecclesiastical  power, 
and  can  not  invoke  the  supervision 
or  control  of  that  jurisdiction  by 
this    or    any  other  civil   tribunal. 


Then,  not  being  now  members  of 
the  church  to  whose  use  the  ground 
was  conveyed,  the  appellants  seem 
no  longer  to  be  entitled  to  any  ben- 
eficial interest  in  that  property,  nor 
to  any  other  right  which  this  court 
can  either  enforce  or  recognize; 
and  consequently  the  old  church, 
as  organized  at  the  date  of  that 
conveyance,  and  still  subsisting, 
must  be  deemed  to  be  entitled  to 
the  exclusive  use  and  enjoyment 
of  the  property  for  all  the  purposes 
for  which  it  was  first  dedicated. 
And,  as  that  right  is  of  the  charac- 
ter of  a  trust,  is  it  not  the  duty  of 
a  court  of  equity  to  uphold  it  and 
secure  its  full  and  undisturbed  en- 
joyment? Such  was  the  purpose 
of  the  modified  reinstatement  of 
the  injunction." 

1- Walker  r.  Wainwright,  16 
Barb.,  486;  Chase  v.  Cheney,  .58 
111.,  509. 

1-  Walker  r.  Wainwright,  16 
Barb.,  486.  The  following  obser- 
vations of  the  court,  Edmonds,  J., 
are  worthy  of  consideration:  "The 


298 


INJUNCTIONS. 


[chap.  V. 


bishop,  or  to  the  manner  m  which  the  ecclesiastical  court  was 
constituted,  he  can  not  afterward  make  such  objections  the 
foundation  for  enjoining  the  enforcement  of  their  sentence  and 
is  debarred  from  relief  in  equity.^  ^ 

§  310.  Decisions  of  ecclesiastical  tribunal  conclusive  as  to 
canons  of  church.  The  jurisdiction  of  ecclesiastical  tribunals 
being  conclusive  as  to  ecclesiastical  offenses,  as  well  as  upon 
doubtful  and  technical  questions  involving  a  criticism  of  the 
canons  of  a  church,  the  civil  courts  will  not  revise  the  decision 
of  such  tribunals  for  the  purpose  of  ascertaining  or  defining 
their  jurisdiction,  nor  will  they  revise  or  question  their  con- 
struction and  interpretation  of  the  canons  of  the  church.  And 
w^here  a  rector  is  placed  upon  trial  before  an  ecclesiastical 
tribunal  of  his  church  for  non-conformity  to  its  doctrines,  he 
will  not  be  allowed  to  enjoin  its  proceedings  upon  the  ground 
of  a  misconstruction  of  the  canons  of  the  church  and  a  want 
of  authority  in  the  spiritual  court,  the  same  objections  hav- 


view  taken  by  me  of  one  feature 
of  this  case  will  render  unneces- 
sary the  examination  of  many  of 
the  questions  which  were  discussed 
on  the  argument;  and  I  shall, 
therefore,  be  silent  in  regard  to 
them.  The  only  ground  on  which 
this  court  can  exercise  any  juris- 
diction in  this  case  is,  that  the 
threatened  action  of  the  defendant 
may  affect  the  civil  rights  of  the 
plaintiff,  for  the  protection  of 
Vvhich  he  has  a  proper  recourse  to 
the  civil  courts.  TTie  rights  which 
are  here  Invoked,  for  that  purpose, 
are  his  exemption  from  taxation, 
and  the  performance  of  certain 
civil  duties.  Conceding  (though 
without  expressly  ruling  the  point) 
that  here  is  ground  enough  for  the 
action  of  this  court,  it  becomes 
material  to  say  that  the  only  cog- 
nizance which  the  court  will  take 


of  the  case  is  to  inquire  whether 
there  is  a  want  of  jurisdiction  in 
the  defendant  to  do  the  act  which 
is  sought  to  be  restrained.  I  can 
not  consent  to  review  the  exercise 
of  any  discretion  on  his  part,  or  at 
all  inquire  whether  his  judgment 
or  that  of  the  subordinate  ecclesi- 
astical tribunal  can  be  justified  by 
the  truth  of  the  case.  I  can  not 
draw  to  myself  the  duty  of  revis- 
ing their  action,  or  of  canvassing 
its  manner  or  foundation,  any 
further  than  to  inquire  whether, 
according  to  the  law  of  the  associa- 
tion to  which  both  of  the  parties 
belong,  they  had  authority  to  act 
at  all.  In  other  words,  I  can  in- 
quire only  whether  the  defendant 
has  the  power  to  act,  and  not 
whether  he  is  acting  rightly." 

n  Walker     v.     Wainwright,     16 
Barb.,   486. 


CHAr.  v.] 


IN    ECCLESIASTICAL    MATTERS. 


299 


ing  been  made  to  that  court  and  its  jurisdiction  having  been 
sustained.^  ^     And  the  principle  may  now  be  regarded  as  too 


15  Chase  v.   Cheney,   58   111.,  509. 
Thornton,   J.,  delivering  the  opin- 
ion of  a  majority  of  the  court,  says, 
p.  533:     *     *     *     "The  minister,  in 
a  legal  point  of  view,  is  a  voluntary 
member  of  the  association  to  which 
he  belongs.       The  position  is  not 
forced  upon  him;  he  seeks  it.    He 
accepts  it  with  all  its  burdens  an-1 
consequences;    with   all   the   rules, 
and  laws  and  canons  then  subsist- 
ing, or  to  be  made  by  competent 
authority;  and  can,  at  pleasure  and 
with    impunity,    abandon    it.       If 
they  were  merciful  and  regardful 
of  conscientious  scruples,  he  knew 
it;    if    they    were    arbitrary,  illib- 
eral, and   attempted   to   chain   the 
thoughts  and  consciences,  he  knew 
it.     They   can   not,   in   any   event, 
endanger  his  life  or  liberty;  impair 
any  of  his  personal  rights;  deprive 
him  of  property  acquired  under  the 
laws;    or  interfere  with  the  free  ex- 
ercise and  enjoyment  of  religious 
profession  and  worship,    for    these 
are    protected  by  the   constitution 
and  laws.    While  a  member  of  the 
association,    however,   and   having 
a  full  share  in  all  the  benefits  re- 
sulting  therefrom,   he    should    ad- 
here to  its  discipline;    conform  to 
its  doctrines  and  mode  of  worship; 
and  obey  its  laws  and  canons.     If 
reason  and  conscience  will  not  per- 
mit,     the     connection     should     be 
severed.     'The  only  remedy  which 
the  member  of  a  voluntary  associa- 
tion has,  when   he  is    dissatisfied 
with  the  proceedings  of    the    body 
with  which  he  is  connected,  is  to 
withdraw  from  it.'  Forbes  v.  Eden, 


infra.  *  *  *  This  case  may  then 
be  briefly  summed  up:  A  rector 
in  the  church  is  charged  with  non- 
conformity to  its  doctrines — in- 
tentional omissions  in  the  minis- 
tration of  its  ordinances;  and  the 
attempt  is  made  to  organize  a  court, 
composed  of  his  brother  clergymen, 
for  his  trial.  He  appeals  to  the  civil 
court,  and  alleges,  as  the  chief 
reason  for  interposition,  the  want 
of  authority  in  the  spiritual  court 
to  try  him,  and  a  misconstruction 
of  the  canons.  The  same  point  was 
made  to  that  court  and  its  power 
denied.  It  was  urged  with  the  same 
earnestness,  and  enforced  with  the 
same  arguments  there  as  here. 
That  court  overruled  the  objection 
and  decided  that  it  had  jurisdic- 
tion. Five  intelligent  clergymen  of 
the  church  presumed  to  be  deeply 
versed  in  biblical  and  canonical 
lore  were  more  competent  than 
this  court  to  decide  the  peculiar 
questions  raised;  why  should  we 
review  that  and  not  every  other  de- 
cision which  involves  the  interpre- 
tation of  the  canons?  It  is  conceded 
that  when  jurisdiction  attaches, 
the  judgment  of  the  church  court 
is  conclusive  as  to  purely  ecclesias- 
tical offenses.  It  should  be  equally 
conclusive  upon  doubtful  and  tech- 
nical questions,  involving  a  criti- 
cism of  the  canons,  even  though 
they  might  comprise  jurisdictional 
facts.  It  requires  no  more  intellect, 
information  or  honesty,  to  decide 
what  is  an  ecclesiastical  offense 
than  to  determine  the  authority  ol 
the  court  according  to  the  canons. 


1^ 


300 


INJUXCTJOXS. 


[CIIAI'.  V. 


Avell  established  to  admit  of  controversy^,  that  in  the  case  of  a 
religious  congregation  or  an  ecclesiastical  body,  which  is  itself 
but  a  subordinate  member  of  some  general  church  organiza- 
tion having  a  supreme  ecclesiastical  judicatory  over  the  entire 
membership  of  the  organization,  the  civil  tribunals  must  accept 
the  decisions  of  such  church  judicatory  as  final  and  conclu- 
sive upon  all  questions  of  faith,  discipline  or  ecclesiastical  rule, 
and  the  party  aggrieved  can  not  invoke  the  aid  of  the  civil 
courts  to  have  such  proceedings  reversed.^® 


*  *  *  Having  given  this  case  a 
most  careful  consideration,  our  de- 
liberate judgment  is  that  the  eccle- 
siastical court  ought  not  to  be  re- 
strained by  the  mandate  of  this 
court."  Lawrence,  C.  J.,  and  Shel- 
don, J.:  "We  concur  in  the  de- 
cision of  the  case  at  bar  announced 
in  the  foregoing  opinion,  and  we 
also  concur  in  the  opinion  itself  ex- 
cept as  to  one  principle  therein. 
We  understand  the  opinion  as  im- 
plying that,  in  the  administration 
of  ecclesiastical  discipline,  and 
where  there  is  no  other  right  ot 
property  involved  than  the  loss  ot 
the  clerical  office  or  salary  as  an 
incident  to  such  discipline,  a  spir- 
itual court  is  the  exclusive  judgt? 
of  its  own  jurisdiction,  under  the 
laws  or  canons  of  the  religious  as- 
sociation to  which  it  belongs,  and 
its  decision  of  that  question  is 
binding  upon  secular  courts.  This 
is  a  principle  of  so  grave  a  char- 
acter that,  believing  it  to  be  er- 
roneous, we  are  constrained  to  ex- 
press our  dissent  upon  the  record. 
We  concede  that  when  a  spiritual 
court  has  once  been  organized  in 
conformity  with  the  rules  of  the 
denomination  of  which  i(  forms  a 
part,  and  when  it  has  jurisdiction 
of  the  parties  and  the  subject-mat 


ter,  its  subsequent  action  in  the 
administration  of  spiritual  disci- 
pline will  not  be  revised  by  the 
secular  courts.  The  simple  reason 
is  that  the  association  is  purely 
voluntary,  and  when  a  person  joins 
it,  he  consents  that  for  all  spiritual 
offenses,  he  will  be  tried  by  a  tri- 
bunal organized  in  conformity 
with  the  laws  of  the  society.  But 
he  has  not  consented  that  he  will 
be  tried  by  one  not  so  organized; 
and  when  a  clergyman  is  in  dan- 
ger of  being  degraded  from  his 
office,  and  losing  his  salary  and' 
means  of  livelihood,  by  the  action 
of  a  spiritual  court  unlawfully  con- 
stituted, we  are  very  clearly  of 
opinion  he  may  come  to  the  secu- 
lar courts  for  protection.  It  would 
be  the  duty  of  such  courts  to  exam- 
ine the  question  of  jurisdiction, 
without  regard  to  the  decision  of 
the  spiritual  court  itself;  and  if 
they  find  such  tribunal  has  been 
organized  in  defiance  of  the  laws 
of  the  association,  and  is  exercis- 
ing a  merely  usurped  and  arbi- 
trary power,  they  should  furnish 
such  protection  as  the  laws  of  the 
land  will  give.  We  consider  this 
position  clearly  sustainable  upon 
principle  and   authority." 

I'i  Watson  r.  Jones.  13  Wal..  679. 


CHAP.  V.J 


IN    ECCLESIASTICzVL    MATTERS. 


301 


§  310  a.     Court    may    determine    jurisdiction    of    tribunal. 

Wliile,  as  we  have  seen,  the  courts  will  not  interfere  with  the 
judgments  of  the  properly  constituted  ecclesiastical  tribunals 
upon  ecclesiastical  questions,  such  as  those  of  faith,  discipline, 
construction  of  the  canons  of  the  church  and  the  like,  yet 
where  the  question  is  as  to  the  jurisdiction  of  the  tribunal  it- 
self or  as  to  its  organization  in  conformity  with  the  rules  and 
regulations  of  the   church,  the  civil  courts  may  properly  en- 


The  governing  principle  in  this 
class  of  cases  is  clearly  enunciated 
in  the  opinion  of  Mr.  Justice  Miller, 
as  follows,  p.  726:  *  *  *  "It  is 
the  case  of  property  acquired  in 
any  of  the  usual  modes  for  the 
general  use  of  a  religious  congre- 
gation, which  is  itself  part  of  a 
large  and  general  organization  of 
some  religious  denomination,  with 
which  it  is  more  or  less  intimately 
connected  by  religious  views  and 
ecclesiastical  government.  The 
case  before  us  is  one  of  this  class, 
growing  out  of  a  schism  which  has 
divided  the  congregation  and  its 
officers,  and  the  presbytery  and 
synod,  and  which  appeals  to  the 
courts  to  determine  the  right  to 
the  use  of  the  property  so  acquired. 
Here  is  no  case  of  property  devot- 
ed forever  by  the  instrument 
which  conveyed  it,  or  by  any 
specific  declaration  of  its  owner, 
to  the  support  of  any  special  reli- 
gious dogmas,  or  any  peculiar 
form  of  worship,  but  of  property 
purchased  for  the  use  of  a  relig- 
ious congregation,  and  so  long  as 
any  existing  religious  congrega- 
tion can  be  ascertained  to  be  that 
congregation  or  its  regular  and 
legitimate  successor,  it  is  entitled 
to  the  use  of  the  property.     In  the 


case  of  an  independent  congrega- 
tion we  have  pointed  out  how  this 
identity,  or  succession,  is  to  be  as- 
certained, but  in  cases  of  this  char- 
acter we  are  bound  to  look  at  the 
fact  that  the  local  congi-egation  is 
itself  but  a  member  of  a  much 
larger  and  more  important  relig- 
ious organization,  and  is  under  its 
government  and  control  and  is 
bound  by  its  orders  and  judgments. 
There  are  in  the  Presbyterian  sys- 
tem of  ecclesiastical  government, 
in  regular  succession,  the  presby- 
tery over  the  session  or  local 
church,  the  synod  over  the  presby- 
tery, and  the  general  assembly 
over  all.  These  are  all  called,  in 
the  language  of  the  church  organs, 
judicatories,  and  they  entertaia 
appeals  from  the  decisions  of  those 
below  and  prescribe  corrective 
measures  in  other  cases.  In  this 
class  of  cases  we  think  the  rule  of 
action  which  should  govern  th.^ 
civil  courts,  founded  in  a  broad 
and  sound  view  of  the  relations  of 
church  and  state  under  our  sys- 
tem of  laws,  and  supported  by  a 
preponderating  weight  of  judicial 
authority  is,  that  whenever  the 
question  of  discipline,  or  of  faith, 
or  ecclesiastical  rule,  custom,  or 
law  has  been  decided  by  the  high- 


302 


INJUNCTIONS, 


[chap.  v. 


tertain  jurisdiction,  and  may  grant  relief  by  injunction  where 
there  is  no  other  adequate  means  of  redress.^  ^ 

§  311.  Deposed  minister  enjoined  from  serving".  Upon  the 
question  of  the  right  to  the  preventive  aid  of  equity  to  re- 
strain a  deposed  minister  from  continuing  to  exercise  his 
clerical  functions  in  the  church  from  which  he  has  been  re- 
moved, the  courts  have  not  been  in  exact  harmony,  the  ground 


est  of  these  church  judicatories  to 
which  the  matter  has  been  carried, 
the  legal  tribunals  must  accept 
such  decisions  as  final,  and  as 
binding  on  them  in  their  applica- 
tion to  the  case  before  them."  And 
see  Pounder  v.  Ashe,  44  Neb.,  672, 
63  N.  W.,  48,  overruling  Pounder 
V.  Ashe,  36  Neb.,  564,  54  N.  W., 
847;  Harmon  v.  Dreher,  1  Speer's 
Eq.,  87;  State  of  Missouri  ex  rel 
V.  Farris,  45  Mo.,  183. 

17  Hatfield  v.  De  Ix)ng,  156  Ind., 
207,  59  N.  E.,  483,  51  L.  R.  A.,  751, 
83  Am.  St.  Rep.,  194.  In  this  case 
the  minister  of  a  church  had  pre- 
ferred charges  against  complain- 
ant, a  member  of  the  organization, 
and  had  called  a  trial  which  had 
resulted  in  a  judgment  of  expul- 
sion, from  which  complainant  had 
taken  an  appeal.  The  organic  law 
of  the  church  provided  for  an  ap- 
peal in  such  case  to  the  quarterly 
conference,  and  for  a  trial  on  such 
appeal  before  a  tribunal  of  five, 
two  of  whom  were  to  be  chosen  by 
the  accused,  two  by  the  members 
of  the  conference  and  the  fifth  by 
these  four.  Complainant  had  se- 
lected his  two  members  of  the 
tribunal,  but  the  defendants,  with 
the  fraudulent  intent  of  depriving 
him  of  the  benefit  of  the  appeal, 
had   selected   two    of    their    own 


number  who  had  sat  in  judgment 
in  the  original  trial.  These  two 
refused  to  consider  the  selection 
of  anyone  as  a  fifth  except  a  mem- 
ber who  was  in  sympathy  with 
them.  The  bill  prayed  that  the 
two  ineligibles  be  enjoined  from 
sitting  on  the  appellate  tribunal 
and  that  all  the  defendants  be  en- 
joined from  taking  any  steps 
against  complainant  until  two  com- 
petent persons  had  been  selected. 
The  relief  was  granted.  The  court 
say:  "This  court  will  have  noth- 
ing to  do  with  the  charge  of  spir- 
itual offenses.  That  is  an  eccle- 
siastical question  purely.  But  the 
inquiry,  whether  or  not  the  tri- 
bunal has  been  organized  in  con- 
formity with  the  constitution  of 
the  church,  is  not  ecclesiastical.  It 
is  the  same  question,  and  that 
only,  that  may  arise  with  respect 
to  any  voluntary  association,  such 
as  fraternal  orders  and  social 
clubs.  The  assertion  of  jurisdic- 
tion in  such  case  is  not  interfer- 
ence with  the  control  of  the  socie- 
ty over  its  members;  but,  on  the 
contrary,  it  assumes  that  the  con- 
stitution was  intended  to  be  mu- 
tually binding  upon  all,  and  it  pro- 
tects the  society  in  fact  by  recall- 
ing it  to  a  recognition  of  its  own 
organic  law." 


CHAP,  v.]  IN   ECCLESIASTICAL    MATTERS.  303 

of  difference  resting  mainly  upon  diverging  views  as  to  whether 
such  an  act  is  an  ordinary  trespass,  which  may  be  remedied  at 
law,  or  whether  the  trespass  is  of  that  continuing  and  ir- 
reparable nature  which  can  be  satisfactorily  remedied  only 
by  the  extraordinary  aid  of  equity.  Upon  the  one  hand,  it  has 
been  contended  that  a  court  of  equity  should  not  enjoin  a  de- 
posed clergyman  from  continuing  his  ministrations  in  the 
church  from  which  he  has  been,  deposed,  since  he  thereby  be- 
comes a  mere  trespasser,  without  right,  and  the  courts  of  law 
afford  ample  remedy  for  such  a  ginevance.^^  Upon  the  other 
hand,  it  is  held,  and  this  doctrine  has  the  clear  weight  of 
authority  as  well  as  principle  in  its  support,  that  such  an  in- 
jury is  of  that  continuous  and  irreparable  nature  that  no  rule 
of  damages  can  rightly  measure  it,  and  that  it  therefore  falls 
within  the  well  defined  range  of  the  preventive  aid  of  equity .^^ 
And  where  a  minister,  not  chosen  in  acordance  with  the  usages 
of  the  church  and  without  authority  legal  or  equitable  to 
officiate  as  its  minister,  forcibly  usurps  the  pastoral  office  and 
attempts  to  exercise  its  functions  by  officiating  as  pastor,  con- 
trary to  the  wishes  of  a  majority  of  the  church  and  declares 
his  intention  of  continuing  so  to  do  for  a  long  period  in  the 
future  unless  prevented  by  physical  force,  an  injunction  will 
be  allowed,  since  the  trespass  is  continuing  in  its  duration  and 
irreparable  in  its  nature,  there  being  no  rule  of  law  or  meas- 
ure of  damages  by  which  the  injury  resulting  from  a  depriva- 
tion of  the  free  enjoyment  of  religious  worship  may  be  esti- 
mated.20  So  w^here  a  chapel  is  conveyed  to  trustees  for  the 
use  of  a  religious  congregation,  and  the  pastor  is  removed  by 
a  majority  of  the  trustees  acting  in  good  faith,  and  he  after- 
wards acting  with  a  minority  of  the  trustees  obtains  posses- 
sion of  the  chapel  and  excludes  the  majority  therefrom,  an 

18  German  Church  v.  Maschap,  2  249.    See  Pounder  v.  Ashe,  44  Neb., 
Stockt.,  57.  672,  63  N.  W.,  48,  overruling  Poun- 

19  Trustees  v.  Stewart,  43  111.,  81;  der  v.  Ashe,  36  Neb.,  564,  54  N.  W., 
Perry  i'.    Shlpway,   4   DeG.    &    J.,  847. 

353,  affirming  S.  C,  1  Gif.,  1;  20  Trustees  1:  Stewart,  43  111.,  81. 
Coor':r    r.    Gordon,     L.     R.     8    Eq., 


304  iNJUxcTioxs.  [chap.  v. 

injunction  will  lie  in  behalf  of  the  majority  of  the  trustees  to 
prevent  such  use  of  the  ehapel>'^  And  although  no  express 
provision  is  made  for  the  appointment  or  removal  of  a  min- 
ister, yet  if  by  the  terms  of  the  deed  conveying  church  prop- 
erty to  a  religious  body  the  title  is  vested  in  trustees  for  the 
use  of  the  congregation,  and  a  minister  has  been  dismissed 
by  the  action  of  a  majority  of  the  church  members  and  trus- 
tees, such  majority  are  entitled  to  an  injunction  to  prevent  the 
deposed  minister  from  continuing  to  officiate  in  that  capacity.-- 
So  when,  under  the  organization  of  a  church,  a  majority  of  its 
members  have  the  right  to  control  in  church  government  and 
to  select  a  pastor,  and  the  pastor  has  been  dismissed  by  the 
action  of  a  majority,  he  may  be  restrained  from  exercising  his 
functions,  and  his  adherents  may  be  enjoined  from  using  or 
occupying  the  church  without  the  consent  of  the  majority.^^ 
§  312.  Pastor  regularly  chosen  not  enjoined.  An  injunction 
will  not,  however,  be  granted  for  the  purpose  of  ejecting  a 
clergyman  from  his  possession  of  a  church  and  to  prevent  his 
preaching  therein,  when  he  is  actually  in  office,  having  been 
placed  there  in  the  first  instance  by  the  act  of  the  church  and 
holding  possession  under  claim  of  right,  there  being  no  other 
claimant  of  the  pastoral  office.^^  And  where,  in  conformity 
with  the  usage  and  custom  of  an  independent  church,  not  con- 
nected with  any  religious  denomination  and  governed  by  its 
own  rules  and  customs,  a  pastor  has  been  duly  elected  by  a 
majority  vote  of  the  society,  but  the  trustees,  who  have  not  the 
power  of  election,  afterward  decide  upon  the  removal  of  the 
j)astor,  equity  will  not  interfere  in  their  behalf  to  restrain  the 
pastor  from  officiating.--'"'  And  where  trustees,  having  control 
of  its  property  in  trust  for  a  church,  impr()i)erly  close  the 
chui-ch   against  the  regular  pastor,  who   is  entitled   under  its 

■21  Perry  v.  Shipway,  4  DeG  &  J.,         -•'  Hatchett  r.  Mt.  Pleasant  Bap- 
353,  affirming  S.  C,  1  Gif.,  1.  tist  Church,  46  Ark.,  291. 

22  Cooper  r.  Gordon,  L.  R.  8  Eq.,         - '  Youngs  r.   Ransom,  31    Barb.. 
249.  49. 

■^r'  Trustees  v.  Proctor,  66  111.,  11. 


CHAP,  v.]  IK    ECCLKSIASTICAL    MATTEKS.  305 

canons  to  admission,  au  injunction  will  lie.  And,  the  right 
being  clearly  established  and  its  nivasion  being  likely  to  re- 
sult in  serious  injury,  the  injunction  may  be  granted  in  the 
mandatory  form  to  compel  the  opening  of  the  church.26 

§  313.  Removal  of  minister  not  enjoined.  The  civil  courts 
recognize  to  the  fullest  extent  the  right  of  religious  bodies  to 
control  their  own  internal  affairs  and  to  select  their  own  min- 
isters, in  the  absence  of  any  obligations  imposed  upon  them 
by  the  conveyances  under  which  they  hold  their  property. 
And  where  the  deed  conveying  the  property  and  buildings  of 
a  church  is  silent  as  to  the  mode  of  electing  a  minister  and 
his  continuance  in  office,  and  makes  no  provision  for  his  salary 
or  support,  for  which  he  is  wholly  dependent  upon  the  volun- 
tary contributions  of  the  church  members,  a  court  of  equity 
will  not  interfere  to  enjoin  his  removal  by  a  vote  of  the 
church.27 

§  314.     Injunctions  against  trustees    and    church    officers. 

Any  act  upon  the  part  of  trustees  of  a  religious  society  which 
obstructs  the  enjoyment  of  its  property  for  the  purposes  and 
in  the  manner  authorized  by  the  usages  of  the  church,  is  a 
departure  from  their  trust  which  will  be  corrected  in  equity, 
such  trustees  holding  the  church  property  for  the- use  of  the 
beneficiaries  and  the  utmost  good  faith  being  exacted  in  the 
performance  of  their  trust.-^  Nor  does  the  fact  that  a  court 
of  law  may  have  concurrent  jurisdiction  in  such  a  case  by 
mandamus,  or  that  a  statutory  remedy  is  provided,  deprive  the 
court  of  equity  of  its  jurisdiction.-'^  Thus,  where  the  trustees 
have  closed  the  church  against  the  minister  and  those  who 
desire  to  hear  him,  contrary  to  the  wishes  of  a  majority  of 
the  members,  an  injunction  is  the  proper  remedy,  the  griev- 
ance being  a   continuing   act   intended   to   prevent   the    com- 

26  Whitecar  v.  Michenor,  37  N.  ->^  Brunnenmeyer  v.  Buhre,  32 
J.  Eq.,  6.  III.,  183. 

2T  Porter  v.  Clarke,  2  Sim.,  520.  29  id. 

20 


306  INJUNCTIONS.  [chap.  V. 

plainants  from  exercising  their  right  of  worship  in  the  church.^^ 
So  trustees  have  been  restrained  by  injunction  from  appoint- 
ing a  minister  not  duly  qualified  according  to  the  doctrines 
and  standard  of  the  church.^^  And  an  injunction  will  be  al- 
lowed in  behalf  of  an  incorporated  church  to  restrain  per- 
sons professing  to  act  as  church  officers,  but  without  au- 
thority, from  withholding  possession  of  the  church  property 
and  temporalities  which  they  have  secretly  and  illegally 
usurped,  and  to  restrain  them  from  interfering  with  the  prop- 
erty and  records  of  the  church,  such  acts  being  distinguish- 
able from  mere  trespasses  which  may  be  remedied  by  aa 
action  at  law.^^  j^(j  jq  such  case  the  trustees  of  the  church, 
are  proper  parties  complainant  to  the  suit  for  an  injunc- 
tion against  the  pretended  trustees,  and  the  action  need  not 
be  brought  in  the  name  of  the  state.^^  gg  where  trustees 
of  a  religious  society  are  merely  naked  trustees,  holding  and 
disposing  of  its  property  in  conformity  with  the  directions 
of  the  cestui  que  trust,  which  is  the  congregation,  and  the 
congregation  has  voted  regularly  to  allow  the  pastor  a  given. 
credit  upon  a  bond  given  by  him  to  the  corporation,  and  the 
trustees,  having  acquiesced  in  the  transaction,  afterward  in- 
stitute an  action  upon  the  bond  in  disregard  of  the  credit  thus 
allowed,  they  may  be  restrained  from  prosecuting  such  ac- 
tion.^^  And  where  the  trustees  merely  hold  the  temporal  prop- 
erty of  the  church  in  trust  for  the  congregation,  with  no 
authority  to  close  the  church  building  at  their  discretion,  the 
pastor  and  the  society  being  the  depositaries  of  such  au- 
thority according  to  the  church  customs  and  discipline,  the 

30  Brunnenmeyer    v.    Buhre,     32  elapse  before  the  hearing. 

III.,  183.  '■^~  Lutheran   Evangelical   Church 

•ii  Milligan  v.  Mitchell,  1  Myl.  &  v.  Gristgau,  34  Wis.,  328;  Trustees 

K.,    446.        But    the    court   refused  v.  Hoessli,  13  Wis.,  348. 

that    part    of   the    motion    which  ■'';*  Trustees  v.   Hoessli,    13    Wis., 

sought    to   restrain    the     trustees  348. 

from  allowing  persons  not  properly  •'•»  Worrell  r.   First  Presbyteriau 

qualified   to    officiate    occasionally  Church,  8  C.  E.  Green,  96. 
during    the     short     period    yet    to 


CHAP,  v.]  IN    ECCLESIASTICAL    MATTERS.  307 

trustees  may  be  enjoined  from  closing  the  church  and  from 
preventing  its  use  as  a  place  of  worship  or  business.^^  It  is 
also  worthy  of  notice  that  in  matters  of  church  regulation  the 
courts  give  great  weight  to  the  views  of  members  or  cor- 
porators, even  as  against  trustees  or  officers  of  the  corpora- 
tion. And  in  an  action  by  the  trustees  of  a  religious  organiza- 
tion against  its  minister  to  prevent  him  from  removing  the 
church  building  and  temporalities  to  another  location,  if  it 
appears  that  a  majority  of  the  corporators  or  members  favor 
such  removal,  a  court  of  equity  will  be  inclined  to  give  effect 
to  their  views  and  will  refuse  to  enjoin  in  behalf  of  the  trus- 
tees.^^ 

§  315.  The  same,  when  refused.  While,  however,  the  juris- 
diction of  equity  to  prevent  any  departure  from  the  objects 
of  a  trust  created  for  religious  purposes  is,  as  we  have  al- 
ready seen,  firmly  established,  the  civil  tribunals  will  not 
wrest  from  the  properly  constituted  authorities  of  a  church 
the  right  to  exercise  their  discretion  over  matters  properly 
within  their  own  control.  And  a  court  of  equity  will  not 
interfere  upon  the  complaint  of  members  of  a  church  to 
restrain  the  trustees  thereof  from  a  sale  of  the  church  prem- 
ises, the  trustees  being  vested  with  full  control  over  the  aifairs 
of  the  church  and  the  sale  being  a  matter  entirely  within 
their  own  discretion.^^  Nor  does  the  fact  that  trustees  of 
a  religious  association,  contrary  to  the  express  terms  of  their 
charter,  have  intruded  upon  the  functions  of  the  minister  or 
other  officers  of  the  church,  constitute  sufficient  ground  for 
the  interposition  of  equity  by  injunction,  the  proper  remedy 
being  by  mandamus.^^  But  where  church  wardens  are  by  law 
the  guardians  and  keepers  of  the  church  and  representatives 
of  the  body  of  the  parish,  they  may  restrain  the  incumbent 

35  Morgan  v.  Rose,  7  C.  E.  Greeu,  so  Kulinski  v.  Fambrowski,  29 
583.  But  the  court  hold  the  church     Wis.,  109. 

corporation,  as  such,  to  be  a  neces-  ^7  Van  Houten  v.  First  Church, 
sary  party  to  the  proceeding.  2  C.  E.  Green,  126. 

38  Tartar  v.  Gibbs,  24  Md.,  323. 


308  INJUNCTIONS.  [CUAP.  V. 

from  dismantling  the  church  and  from  removing  the  pews  with 
a  view  to  improvements.^^  And  the  managers  of  a  religious 
society  who  have  removed  an  agent  for  alleged  misconduct 
have  been  allowed  an  injunction  to  prevent  such  deposed  agent 
from  interfering  with  their  possession   of  the   premises.'*'^ 

§  316.  Disturbance  of  burial  ground  enjoined.  It  is  not 
necessary  that  property  should  actually  have  been  conveyed 
to  the  uses  of  a  religious  society  to  create  a  trust  entitled 
to  the  protection  of  equity,  and  where  real  estate  has  been 
dedicated  to  religious  uses  and  has  been  held  and  occupied 
by  a  church  for  religious  purposes  and  as  a  burial  ground 
for  a  period  of  fifty  years,  with  the  acquiescence  of  the 
original  donor,  his  heirs  will  be  enjoined  from  disturbing  such 
possession  and  from  attempting  to  regain  the  property."^^  And 
although  the  congregation  is  merely  a  voluntary  society,  never 
incorporated,  and  acting  by  committees  or  trustees  chosen 
from  time  to  time  by  vote  of  its  members,  such  trustees,  be- 
ing in  actual  possession  of  the  premises  and  acting  by  direc- 
tion of  the  society  to  prevent  any  disturbance  of  that  pos- 
session, are  proper  parties  to  maintain  a  bill  for  injunction.*^ 

39  Cardinal  r.  Molyneux,  7  Jur.  serious  objection  to  their  right  to 
N.  S.,  854,  affirming  S.  C,  lb.,  254,  maintain  the  suit.  It  is  a  case 
2  Gif.,  535.  where  no  action  at  law,  even  if 
*o  Spurgin  c.  White,  2  Gif.,  473.  one  could  be  brought  by  the  volun- 
^J  Beatty  ?•.  Kurtz,  2  Pet.,  566.  tary  society  (which  it  would  be 
42  Beatty  r.  Kurtz,  2  Pet.,  566.  In  difficult  to  maintain),  would  afford 
the  ornate  language  of  Mr.  Justice  an  adequate  and  complete  remedy. 
Story  the  court  say:  *  *  *  This  is  not  the  case  of  a  mere 
"The  next  question  is,  as  to  the  private  trespass;  but  a  public 
competency  of  the  plaintiffs  to  nuisance,  going  to  the  irreparable 
maintain  the  present  suit.  If  they  injury  of  the  Georgetown  Congre- 
are  proved  to  be  the  regularly  ap-  gation  of  Lutherans.  The  proper- 
pointed  committee  of  a  voluntary  ty  consecrated  to  their  use  by  per- 
society  of  Lutherans,  in  actual  pos-  petual  servitude  or  easement,  is  to 
session  of  the  premises,  and  acting  be  taken  from  them,  the  sepulchres 
by  their  direction  to  prevent  a  dis-  of  the  dead  are  to  be  violated;  the 
turbance  of  that  possession,  under  feelings  of  religion,  and  the  senti- 
fircumstances  like  those  stated  in  ment  of  natural  affection  of  the 
the   bill,   we  do   not   perceive   any  kindred  and  friends  of  the  deceas- 


CHAP,  v.]  IN    ECCLESIASTICAL    MATTEKS.  309 

So  where  land  has  been  conveyed  for  use  as  a  burial  ground 
for  members  of  a  particular  church,  the  conveyance  limit- 
ing its  use  to  the  burial  of  members  of  that  church,  an  in- 
junction will  be  granted  to  prevent  the  interment  therein  of 
one  who  was  not  in  communion  with  the  church  at  the  time 
of  his  deatli.'*^ 

§  317.     When  doctrinal  questions  investigated    in    equity. 

The  question  of  the  extent  to  which  a  court  of  equity  will  in- 
vestigate the  doctrines  and  inquire  into  the  modes  of  worship 
of  a  religious  society  is  largely  dependent  upon  the  terms  and 
conditions  of  the  trust  under  which  its  property  is  held.  And 
where  property  is  convej-ed  to  trustees  for  the  use  of  a  re- 
ligious association  upon  the  condition  of  its  being  forever  used 
as  a  place  of  worship  in  accordance  with  the  forms  and  doc- 
trines of  a  particular  church,  such  doctrinal  points  are  proper 
subjects  of  investigation  by  the  court  in  determining  whether 
such  a  perversion  of  the  trust  exists  as  to  warrant  an  injunc- 
tion.*"* But  where  such  investigation  is  not  necessary  for  the 
protection  and  enforcement  of  the  trust,  the  court  will  not 
institute  any  inquiries  into  doctrinal  or  polemical  question.*^ 

§  318.  Violation  of  trust  by  one  of  two  religious  bodies 
ground  for  injunction.  Where  property  is  conveyed  in  trust 
for  the  use  of  two  unincorporated  religious  bodies,  and  one 

ed  are  to  be  wounded;  and  the  me-  religious    sensibilities    of    the    liv- 

morials  erected  by  piety  or  love,  to  ing." 

the  memory  of  the  good,  are  to  be  *'^  Dwenger  i\  Geary,  113  Ind., 
removed,  so  as  to  leave  no  trace  of  106,  14  N.  E.,  903. 
the  last  home  of  their  ancestry  to  **  Kniskerni;.  Lutheran  Churches, 
those  who  may  visit  the  spot  in  1  Sandf.  Ch.,  439;  Miller  r.  Gable, 
future  generations.  It  can  not  be  2  Denio,  492;  Baptist  Church  r. 
that  such  acts  are  to  be  redressed  Witherell,  3  Paige,  296;  McGinni.s 
by  the  ordinary  process  of  law.  r.  Watson,  41  Pa.  St.,  9;  Sutter  v 
The  remedy  must  be  sought,  if  at  Trustees,  42  Pa.  St.,  503;  Wine- 
all,  in  the  protecting  power  of  a  brenner  v.  Colder,  43  Pa.  St.,  244. 
court  of  chancery,  operating  by  its  *5  German  Church  v.  Maschop,  2 
injunction  to  preserve  the  repose  Stockt.,  57. 
of  the  ashes  of  the  dead,  and  the 


310  INJUNCTIONS.  [chap.  V. 

of  the  two,  in  violation  of  the  terms  of  the  trust,  takes  exclu- 
sive possession,  a  proper  case  is  presented  for  an  injunction. 
Such  a  dispute  is  not  merely  as  betw^een  tenants  in  common 
of  realty,  but  it  concerns  the  rights  and  privileges  of  mem- 
bers of  unincorporated  societies,  and  the  remedy  at  law  be- 
ing inadequate,    equity   may   properly   interfere.^*^ 

§  319.  Mere  trespass  not  enjoined.  If  the  injury  complained 
of  is  merely  a  trespass  susceptible  of  adequate  relief  in  an 
action  at  law,  an  injunction  should  not  be  allowed.^'''  Thus, 
where  two  conflicting  sects  of  a  church  were  contending  as 
to  the  right  of  possession  of  church  property,  and  the  party  in 
actual  possession  had  obtained  an  injunction  restraining  de- 
fendants from  forcibly  entering  into  the  premises  to  bury 
their  dead,  the  injunction  was  dissolved  on  the  ground  that 
the  acts  in  question  merely  constituted  a  trespass  and  were  not 
productive  of  irreparable  injury.^'*  So  the  relief  will  be  de- 
nied Avhere  the  legal  remedy  of  ejectment  is  adequate.*^ 

§  319  a.  Injunction  where  question  of  trust  involved,  eject- 
ment being  inadequate.  Notwithstanding,  however,  the  ex- 
istence of  a  legal  remedy,  the  courts  are  inclined  to  be  liberal 
in  granting  relief  by  injunction,  unless  it  appears  that  the 
remedy  at  law  is  fully  as  effective  for  the  redress  of  the  wrong 
complained  of  as  that  in  equity.  And  where  the  question  of 
title  between  two  contending  factions  is  incidental  to  and 
involves  the  determination  of  the  trusts  upon  which  the  title 
is  held,  which  are  matters  peculiarly  within  the  province  of  a 
court  of  equity,  the  remedy  by  ejectment  is  not  regarded  as 
practical  or  adequate,  and  relief  by  injunction  is  properly 
granted.^^  And  where  one  of  the  opposing  factions  was  for- 
cibly preventing  complainants  from  enterins:  the  church  and 

46  Kisor's  Appeal,  62  Pa.  St.,  428.         «  Miller  v.  English,  2  Halst.  Ch., 

*■!  Miller  v.  English,  2  Halst.  Ch  ,     304. 
304;    Wehmer  r.  Fokenga,  57  Neb.,         ^i"  Wehmer  r.  Fokenga,  57  Neb., 
510,   78  N.   W.,   28;     P>edericks  r.     510.   78   N.    W.,   28;     Fredericks   r. 
Huber,  180  Pa.  St.,  572.  37  Atl.,  90.     Huber,  180  Pa.  St.,  572,  37  Atl.,  90. 

•''>  Brundage  v.  Deardorf ,  55  Fed., 


CHAP,  v.] 


IN    ECCLESIASTICAL    MATTERS. 


311 


was  threatening  to  destroy  the  church  property  rather  than 
to  allow  complainants  to  use  it,  an  injunction  was  held  to 
be  the  proper  remedy.^^  And  where  complainants,  the  deacons 
of  a  church  and  trustees  of  its  property,  have  the  power  to 
determine  by  whom  it  may  be  used  and  to  exclude  those  who 
refuse  to  recognize  the  authority  of  the  regular  organization, 
they  may  enjoin  defendants  who  had  been  expelled  from  the 
church  from  interfering  with  their  use  and  possession  of  the 
church  property .^2 


839.  In  this  case  Taft,  J.,  uses 
the  following  language:  "The 
first  contention  in  support  of  the 
demurrer  is  that  a  court  of  equity 
has  no  jurisdiction  to  consider  the 
bill,  because  its  averments  show 
that  the  complainants  have  a 
plain  and  adequate  remedy  at 
law,  in  ejectment.  I  do  not  think 
this  contention  can  be  sustained. 
It  is  quite  true  that  the  complain- 
ants aver  that  they  have  the  legal 
title  to  the  property  in  contro- 
versy, but  it  appears  from  the  bill 
that  they  hold  it  in  trust  for  the 
use  of  the  members  of  the  local 
society  whom  they  represent.  It 
is  also  apparent  that  the  contro- 
versy is  with  another  set  of  trus- 
tees, who  claim  legal  title  for  the 
purpose  of  maintaining  the  prop- 
erty for  different  uses  under  the 
same  deed  of  trust.  In  other 
words,  the  question  of  title  is  to 
be  determined  by  the  character  of 
the  trust  to  which  the  property  .s 
to  be  devoted,  and  the  action  is  to 
restrain  the  use  of  the  property 
in  perversion  of  the  lawful  trust. 
The  property  is,  in  a  sense, 
brought  into  a  court  of  equity,  for 
the  court  to  decide  what  use  shall 
be   made  of   it,   and,   by   its   equi- 


table power  of  injunction,  to  en- 
force the  proper  use.  The  fact 
that  in  doing  so  it  also  has  to  de- 
termine the  legal  title  will  not 
oust  the  jurisdiction  of  a  court 
of  equity.  The  peculiar  charac- 
ter of  the  possession  by  the  church 
trustees,  and  of  the  use  by  the 
pastor  and  congregation,  makes  it 
clear  that  a  mere  action  in  eject- 
ment would  he  quite  inadequate 
as  a  remedy  to  secure  the  com- 
plainant trustees,  and  those  whom 
they  represent,  the  same  peculiar 
possession  and  use  for  them.  The 
writ  of  injunction  is  well  adapted 
to  prevent  an  unlawful  intrusion 
in  the  pulpit  by  the  pastor,  and  an 
unlawful  use  by  the  congregation, 
against  all  of  whom  it  would  be 
obviously  impracticable  to  insti- 
tute proceedings  in  ejectment.  In 
the  enforcement  of  a  trust,  where 
the  circumstances  are  such  that 
the  remedy  is  not  as  complete  at 
law  as  in  equity,  a  trustee  may 
appeal  to  a  court  of  equity  to  as- 
sist him." 

siRichter  r.  Kabat,  114  Mich.. 
575,   72   N.  W.,  600. 

52  Fulbright  v.  Higginbotham, 
133  Mo.,  668,  34  S.  W.,  875. 


312  INJUNCTIONS.  [CIIAP.  V. 

§  320.  Diversion  of  church  property  to  school  purposes  en- 
joined. Where  land  is  conveyed  to  a  church  to  be  used  ex- 
clusively for  religious  purposes  and  for  none  other,  an  in- 
junction will  be  granted  to  restrain  a  diversion  of  the  prop- 
erty for  school  purposes,  and  the  action  may  be  brought  by 
the  pew  owners  of  the  church,  they  having  sufficient  interest 
in  the  property  to  make  them  proper  parties  complainant  to 
the  bill.^3  And  the  trustees  of  a  church  may  be  enjoined  from 
leasing  its  property  for  school  purposes  contrary  to  the  terms 
of  the  grant/"^-*  So  when  two  religious  associations  had  united 
in  the  building  of  a  church,  agreeing  by  their  articles  that 
it  should  be  used  only  Jfor  divine  services,  and  had  for  many 
years  used  it  in  common,  permitting  only  meetings  for  public 
worship  to  be  held  therein,  and  one  of  the  associations,  with- 
out the  sanction  of  the  other  and  against  its  protest,  intro- 
duced a  Sunday  school  into  the  church,  an  injunction  was 
granted  against  such  use  of  the  common  property .^^ 

§  321.  Pew  holders  not  allowed  to  enjoin  trustees  from  re- 
building. Pew  holders  in  a  church  will  not  be  allowed  to 
enjoin  the  trustees  from  rebuilding  when  there  is  no  impro- 
priety in  the  disposition  of  the  funds,  and  it  is  conceded  that 
the  old  buildings  are  in  a  dilapidated  condition  and  that  a 
new  edifice  on  the  same  location  would  be  highly  beneficial. 
Complainants  in  such  a  case  will  be  left  to  the  assertion  of 
their  legal  and  equitable  rights  in  the  new  building  when 
completed.^"  Even  where  the  trustees  are  about  pulling  down 
the  church  for  the  purpose  of  using  the  materials  in  the  erec- 
tion of  a  new  structure  in  a  different  location,  the  nature  and 
extent  of  the  injury  are  not  such  as  to  call  for  an  injunction 
to  protect  the  pew  holders,  and  they  will  be  left  to  their 
remedy  at  law.'"''^ 

•-'S  Howe  V.  School  District,  43  •'■'  Gass's  Appeal,  73  Pa.  St.,  39. 
Vt.,  282.  •''"  Heeney    r.    Trustees,    2    Edw. 

r.i  Perry    v.    McEwen,    22     Ind.,     Ch.,  608. 
440.  •'■'"  Van  Horn  r.  Talmage,  4  Halst. 

Ch..  108. 


CHAP,  v.]  IN    ECCLESIASTICAL    MATTERS.  313 

§322.  Church  property  in  receiver's  hands  protected  by 
injunction.  If  a  court  of  equity  has  already  acquired  juris- 
diction over  the  subject-matter  in  controversy,  and  has  taken 
possession  of  the  church  property  by  its  receiver,  it  will  not 
permit  any  unwarrantable  interference  with  such  possession, 
and  will  protect  its  receiver,  if  necessary,  by  the  process  of 
injunction.  Thus,  where  a  receiver  is  appointed  over  certain 
church  property,  and  a  church  warden,  claiming  to  be  legally 
entitled  thereto,  takes  possession  of  the  property  by  force  and 
prevents  the  minister  from  holding  services  therein,  the  court 
will  enjoin  him  from  interfering  with  the  premises,  or  with  the 
performance  of  worship  therein.'''^ 

»  Attoruey-GeneTal  »•  St.  CroBS     Hospital,  18  Beav.,  601. 


CHAPTER  VI. 

OF    INJUNCTIONS   AFFECTING   REAL   PROPERTY, 

I.  General  Features  of  the  Relief §  323 

II.  Injunctions  in  Aid  of  Possession 354 

III.  Judicial  Sales  under  Execution  against  Third  Person..  367 

IV.  Cloud  upon  Title 372 

V.  Collection   of   Purchase    Money   on   Failure   of   Title..  382 

VI.     Ejectment 414 

VII.     Landlord   and   Tenant 430 

VIII.     Homesteads 438 

I.     General  Features  of  the  Relief. 

§  323.     Equity  averse  to  interference  when  relief  may  be  had  at  law. 

324.  Relief  granted  only  for  fraud,  accident  or  mistake;  facts  must 

be  stated. 

325.  Defense  at  law  a  bar  to  injunction. 

326.  Only  judgment  creditors  may  enjoin  disposition  of  debtor's  prop- 

erty. 

327.  Loss  of  conveyance  ground  for  relief;   stranger  to  title  denied 

injunction. 

328.  Attempt  to  revoke  dedication  enjoined. 

329.  Mining  property;    fraudulent  conveyance  of  land;    recorder  of 

deeds  enjoined. 

330.  When  sale  of  trust  estate  enjoined. 

331.  Tenant  for  life   and  remainder-man;    emblements. 

332.  Party-wall    agreements;    opening    windows    in    party-wall    en- 

joined. 

333.  Injunction  refused  when  party  protected  by  lis  pendens. 

334.  Sale  of  purchase-money  notes  by  vendor  who  has  given  bond 

for   title. 

335.  When   partition   enjoined;    sale   under   execution   not   enjoined 

after  partition. 

336.  Mechanics'  lien  proceeding,  when  not  enjoined. 

337.  Dower  proceeding;   rents  and  profits;   claimant  under  adminis- 

trator's sale. 

338.  Effect  of  conveyance  made  by  one  enjoined. 

339.  Judgment  creditor  not  enjoined  by  legatees  or  devisees. 

314 


CHAP.  VI.]         AFFECTING  KEAL  PROPERTY.  315 

§  340.     Writ  of  restitution  not  enjoined. 

341.  Judgment  for  breach  of  covenants,  when  enjoined. 

342.  Entry  under  right  reserved;   relief  against  penalty  in  deed  of 

trust. 

343.  Fruit  trees  and  shrubbery;  confusion  of  boundaries;  tenants  in 

common. 

344.  Injunctions  as  between  tenants  in  common. 

345.  Sale  of  trust  property,  when  enjoined;  waiver  of  lien  by  judg- 

ment creditor. 

346.  Commissioner  in  chancery,  when  enjoined  from  sale. 

347.  Irregularities  in  municipal  proceedings  no  ground  for  injunc- 

tion. 

348.  Delay  in  giving  deed. 

349.  Municipal    authorities    enjoined   from   encroaching   on   private 

property. 

350.  Removal   of  barracks;   ditch  on  public  domain. 

351.  Disinterment  of  bodies,  when  not  enjoined. 

352.  Sale   of   school   property   under  execution  enjoined. 

353.  Enjoining  removal  of  fixtures,  not  a  conversion  of  fixtures. 
353a.  Judgment  sale  of  realty  in  bulk. 

§-323.  Equity  averse  to  interference  when  relief  may  be  had 
at  law.  The  numerous  and  complicated  questions  growing  out 
of  transfers  of  real  property,  as  well  as  those  which  are  con- 
nected with  its  possession  and  enjoyment,  have  given  rise  to 
frequent  applications  for  the  exercise  of  the  extraordinary 
aid  of  equity  by  injunction.  While,  as  we  shall  see,  the  deci- 
sions of  the  courts  are  not  altogether  harmonious  in  cases  of 
this  nature,  they  have  generally  been  averse  to  any  interference 
where  the  questions  involved  were  such  as  might  be  deter- 
mined in  a  legal  forum.  And  it  is  only  upon  a  clear  showing 
of  the  inadequacy  of  the  remedy  at  law  that  equity  will  assert 
its  jurisdiction. 

§  324.  Relief  granted  only  for  fraud,  accident  or  mistake ; 
facts  must  be  stated.  It  may  be  laid  down  as  a  general  rule 
that  equity  will  not  interfere  with  proceedings  at  law  affect- 
ing the  title  to  real  estate  in  the  absence  of  fraud,  accident 
or  mistake.^      Thus,  purchasers  for  a  valuable   consideration 

1  Rogers  v.  Cross,  3  Chand.,  34;  Evans  v.  Lovengood,  1  Jones  Eq., 
Cameron   v.   White,    3    Tex.,   152;     298.     And  in  Cook  v.  Burnley,  45 


316  INJUNCTIONS.  [chat.  VI. 

and  without  notice  of  conflicting  equities  will  not,  on  ac- 
count of  such  equities,  be  enjoined  from  taking  possession  of 
premises  under  a  judgment  in  ejectment  in  their  favor,  no 
fraud  being  alleged  against  them.'-  Nor  will  the  loss  of  a 
deed  necessary  to  complete  a  chain  of  title  warrant  the  inter- 
position of  equity  in  the  absence  of  fraud,  accident  or  mis- 
take.3  So,  too,  a  sale  of  real  estate  under  legal  process  will  not 
be  enjoined  because  of  irregularities  in  the  proceedings,  or 
because  the  judgment  on  which  process  issued  was  void,  where 
no  serious  injury  or  embarrassment  to  title  is  shown  as  likely 
to  result  from  allowing  the  sale  to  proceed.'*  Nor  will  a  sale 
under  execution  be  restrained,  as  between  different  creditors 
claiming  liens  thereon,  upon  the  ground  that  a  sale,  pending 
the  determination  of  such  liens,  would  not  realize  the  full  value 
of  the  property,  or  upon  the  ground  that,  by  reason  of  his 
poverty,  complainant  will  be  unable  to  bid  for  the  premises 
at  such  sale.-''  Nor  will  a  sale  under  execution  be  enjoined 
because  of  a  misdescription  of  the  premises,  when  the  mis- 
take is  not  such  as  to  render  the  levy  void  and  when  the  land 
may  be  readily  identified.^  And  when  an  injunction  is  sought 
upon  the  ground  of  alleged  injury  to  real  estate,  the  facts 
must  be  stated  which  show  that  the  injury  is  irreparable,  and 
a  mere  allegation  of  irreparable  injury  will  not  suffice  to  war- 
rant the  relief.'^ 

Tex.,  97,  it  is  said  that  an  injunc-  3  Rogers  v.  Cross,  3  Chand.,  34. 

tion  in  a  litigation  concerning  real  *  Morgan  v.  Whiteside's  Curator, 

estate  which    restrains    defendant  14  La.,  277;    Cameron  v.  White,  3 

from    asserting    any    title    to    the  Tex.,   152;     Union    Iron  Works   v. 

land  in  controversy,  either   in  any  Bassick  Mining  Co.,  10  Col.,  24,  14 

court,  or  "in  any  writing,    or    by  Pac,  54. 

printed   publication,  or  by  spoken  ^  Sanders  v.  Foster,  66  Ga.,  292. 

words,"   if  permissible  at  all,  can  '•  Boggess  r.  Lowrey,  78  Ga.,  539, 

only    be   supported    upon   very   ex-  3  S.  E.,  771. 

traordinary    grounds,     established  '  Van  Wert  (;.   Webster,  31  Ohio 

with  great  certainty  of  proof.  St..  421. 

2  Evans    r.   I.,ovengood,    1    Jones 
Eq.,  298. 


CHAP.  VI.]  AFFECTING    HEAL    PROPERTY.  317 

§  325.  Defense  at  law  a  bar  to  injunction.  The  fact  that 
the  ground  relied  upon  as  the  foundation  for  an  injunction 
can  be  urged  as  a  defense  at  law  is  a  sufficient  reason  for 
withholding  the  relief.  And  where  a  bill  is  filed  to  establish  a 
legal  title  and  for  a  perpetual  injunction  against  proceedings 
at  law  connected  therewith,  in  the  absence  of  any  allegation 
of  inability  to  defend  at  law,  the  relief  will  be  refused.^  So 
legal  proceedings  affecting  the  title  to  real  estate  will  not  be 
restrained  on  the  ground  that  plaintiff  has  no  cause  of  action. 
Thus,  the  plaintiff  in  an  action  of  forcible  entry  and  detainer 
will  not  be  enjoined  from  further  prosecuting  his  action  be- 
cause he  has  no  title,  the  title  to  the  premises  being  in  de- 
fendant, since  such  defense  can  as  well  be  relied  upon  in 
the  action  itself.**  Nor  will  equity  interfere  with  the  prose- 
cution of  actions  of  forcible  entry  and  detainer  where  it  does 
not  appear  that  a  certain  and  manifest  irreparable  injury  will 
result  unless  the  relief  be  allowed,  and  where  there  are  no 
allegations  of  fraud,  accident,  mistake,  or  surprise.!^ 

§  326.  Only  judgment  creditors  may  enjoin  disposition  of 
debtor's  property.  It  is  a  well  established  rule  that  equity 
will  not  entertain  jurisdiction  to  restrain  a  debtor  from  dis- 
posing of  his  property  at  the  suit  of  a  creditor  whose  de- 
mand is  not  yet  reduced  to  judgment,  and  which  constitutes 
no  lien  upon  the  property.  Until  his  rights  are  fixed  and  es- 
tablished by  judgment,  a  creditor  is  entitled  to  no  control  over 
his  debtor's  property  and  he  will  not  be  allowed  to  question 
its  disposition  or  management.  Any  other  rule  than  this  would 
lead  to  unnecessary  and  often  fruitless  interruption  of  prop- 
erty rights  by  creditors  at  large  whose  demands  might  be 
utterly  unfounded  in  law  and  incapable  of  being  established 
by  judgment.^i     In  the  application  of  this  rule  a  judgment, 

»*  DeGroot  v.  Receivers,  2  Green  ^  Wiggins  v.  Armstrong,  2 
Ch.,  198.  Johns.  Ch.,  144.     And  see  Candler 

9  Chadoin  v.  Magee,  20  Tex.,  476.     r.  Petitt,  1  Paige,  168.     Upon  this 

10  Crawford  v.  Paine,  19  Iowa,  subject  generally,  see,  jiost.  §  1403 
172;    Lamb  r.  Drew,  20  Iowa,  15.         et  seq. 


318 


INJUNCTIONS. 


[chap.  VI. 


to  "warrant  the  interference  of  a  court  of  equity,  must  be 
such  an  one  as  constitutes  a  lien  upon  the  real  estate  sought 
to  be  controlled.  A  foreign  judgment  will  not  therefore  suf- 
fice, since,  until  reduced  to  judgment  in  the  state  where  the 
injunction  is  sought,  it  constitutes  no  lien  on  the  debtor's 
property.  Until  such  judgment  is  established  by  the  courts 
of  the  state  where  relief  is  sought,  the  judgment  creditors  have 
no  other  or  different  rights  as  to  the  property  of  their  debtor 
than  if  their  demand  was  not  yet  established  at  law.^^ 


12  Buchanan  v.  Marsh,  17  Iowa, 
494.  In  this  case  suit  was  begun 
upon  a  judgment  rendered  in  Can- 
ada, and  an  injunction  was  asked 
at  the  same  time  to  restrain  de- 
fendants from  alienating  or  in- 
cumbering their  real  estate  until 
the  rights  of  the  parties  should  be 
determined  at  law.  Wright,  C.  J., 
delivered  the  opinion  of  the  court, 
saying:  "Plaintiffs  are  not  judg- 
ment creditors.  For  the  purposes 
of  the  present  inquiry,  their  ac- 
tion is  like  any  ordinary  one  upon 
a  note,  account,  or  any  simple 
contract,  or  evidence  of  indebted- 
ness. They  have  a  foreign  judg- 
ment; but  until  it  becomes  a 
judgment  in  our  courts,  they  are 
no  more  than  creditors  at  large, 
and  until  they  obtain  the  recogni- 
tion of  their  claim  by  the  adjudi- 
cation of  our  state  tribunals,  they 
have  no  other  or  different  rights 
as  to  the  property  of  their  debtor 
than  if  their  demand  was  indorsed 
by  a  less  solemn  or  conclusive 
proceeding  or  instrument.  For, 
however  effectual  such  judgment 
may  be,  or  whatever  the  faith  and 
credit  to  which  it  may  be  entitled, 
it  is  very  certain  that  it  can  not 
be  enforced  here  until  its  validity 


is  recognized  and  passed  upon  by 
the  judgment  of  our  courts.  *  *  * 
This  being  so,  upon  common  law 
principles,  we  know  of  no  princi- 
ple upon  which  plaintiffs  were  en- 
titled to  this  injunction.  The  rule 
is,  as  far  as  we  know,  without  ex- 
ception, that  the  creditor  must 
have  completed  his  title  at  law, 
by  judgment  (if  not  by  execu- 
tion), before  he  can  question  the 
disposition  of  the  debtor's  prop- 
erty. Angell  V.  Draper,  1  Vern., 
399;  Shirley  r.  Watts,  3  Atk.,  200; 
Bennet  v.  Musgrove,  2  Ves.,  51; 
Wiggins  V.  Armstrong,  2  Johns. 
Ch.,  144;  Jeremy's  Eq.,  161.  The 
reason  of  the  rule  is,  that,  until 
the  creditor  has  established  his 
title,  or  his  debt,  by  the  judgment 
of  a  court,  he  has  no  right  to  in- 
terfere; for,  unless  he  has  a  cer- 
tain claim  upon  the  .  property  of 
the  debtor,  he  has  no  concern  with 
his  frauds.  To  establish  any  other 
rule,  might  lead  to  an  unnecessary 
and  perhaps  fruitless  and  oppres- 
sive interruption  of  the  exercise 
of  the  debtor's  rights.  2  Johns. 
Ch.,  supra."  But  in  Joseph  v.  Mo- 
Gill,  52  Iowa,  127,  plaintiff  who 
hafl  attached  real  estate  claimed 
to  belong  to  the  debtor  and  to  have 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  319 

§  327.  Loss  of  conveyance  ground  for  relief;  stranger  to  title 
denied  injunction.  Relief  may  sometimes  be  had  against  a  sale 
of  real  property  on  the  ground  of  unavoidable  accident  where 
great  injury  would  result  to  complainant  if  the  sale  were  al- 
lowed to  proceed  unchecked.  Thus,  where  a  conveyance  of 
land  is  executed  and  delivered  and  the  purchase  price  paid, 
but  the  conveyance  is  lost  before  being  recorded,  a  sale  of  the 
premises  by  the  heirs  or  representatives  of  the  grantors  may 
be  enjoined,  such  sale  being  a  fraud  upon  the  rights  of  the 
grantees,^ ^  So  a  purchaser  of  real  estate  which  is  located  in 
another  state,  who  has  paid  part  of  the  purchase  money  and 
received  from  his  grantors  a  conveyance  so  defectively  ac- 
knowledged as  not  to  entitle  it  to  record  in  the  state  where 
the  land  is  located,  may  enjoin  his  grantors  from  selling  the 
property  to  others.^-*  But  a  stranger  to  the  title,  even  though 
he  be  in  possession,  will  not  be  permitted  to  enjoin  the  real 
owners  from  asserting  their  title  on  the  ground  that  it  was 
fraudulently  obtained.^^ 

§  328.  Attempt  to  revoke  dedication  enjoined.  It  may  some- 
times happen  that  the  owner  of  lands  is  by  his  own  acts  es- 
topped from  exercising  any  subsequent  control  over  them  and 
may  be  enjoined  from  interference.  Thus,  a  dedication  of  land 
to  the  use  of  the  public,  being  in  the  nature  of  an  estoppel  in 
pais,  equity  will  enjoin  any  attempt  to  revoke  such  dedication 
and  to  sell  the  land.^''  And  where  real  estate  has  been  for  many 
years  occupied  by  a  church  for  pious  uses  with  the  knowledge 
and  consent  of  the  donor,  his  heirs  will  be  perpetually  en- 
joined from  disturbing  such  possession,  even  though  the  dedi- 

been    fraudulently    conveyed    to   a  i'- Wright's    Heirs     v.     Christy's 

co-defendant,    was    allowed    an   in-  Heirs,   39   Mo.,    125. 

junction    before   judgment   to   pre-  i-*  Frank  v.  Peyton,  82  Ky.,  150. 

vent  defendants  from  transferring  i^  Treadwell    v.   Payne,    15    Cal., 

the    property     in    fraud   of   their  496. 

creditors.  i«  Mayor  v.  Franklin,  12  Ga.,  239. 


320  INJUNCTIONS.  [chap.  \'l. 

cation  may  have  beeu  in  such  vague  terms  as  not  to  be  supr 
ported  generally  in  equity.^  ^ 

§  329.    Mining  property ;  fraudulent  conveyance  of  land ;  re- 
corder  of  deeds  enjoined.     While  as  a  general  rule  courts  of 
equity  look  unfavorably  upon    applications    for    injunctions 
pending  proceedings  at  \'aw  to  determine  the  title  to  realty, 
there  may  be  peculiar  circumstances  connected  with  the  prop- 
erty rendering  it  imperative  that  the  rule  should  be  somewhat 
relaxed  and  the  relief  granted.     Thus,  where  the  title  to  min- 
ing property  is  in  controversy,  an  injunction  may  be  granted 
to  preserve  the  property  pending  litigation  to  try  the  right, 
the  exception  resting  upon  the  peculiar  nature  of  the  property 
in  dispute.^ '^     So  in  an  action  to  set  aside  a  fraudulent  con- 
veyance of  land  and  to  recover  possession  of  the  premises  on 
which  a  valuable  crop  is  standing,  an  injunction  has  been  al- 
lowed to  prevent  defendant  from  disposing  of  the  land  until 
the  rights  of  the  parties  should  be  determined  at  law.^^    And 
w^hile  the  remedy  by  injunction  is  not  ordinarily  employed  to 
determine  controverted  questions  of  title,  yet  in  a  case  of  con- 
spiracy by  defendants  to  defraud  the  owner  of  his  property, 
they  may  be  enjoined  from  conveying,  and  the  recorder  may 
be  enjoined  from  recording  a  fraudulent  conveyance  of  the 
property.-*^ 

§330.  When  sale  of  trust  estate  enjoined.  Although  the 
protection  and  enforcement  of  trusts  is  a  favorite  branch  of 
the  jurisdiction  of  courts  of  chancery,  it  is  not  every  case  of 
a  trust  that  will  warrant  relief  by  injunction.  Thus,  equity 
will  not  interfere  to  prevent  the  execution  of  a  general  power, 
in  a  trustee  to  sell  lands  for  the  benefit  of  others  where  it 
does  not  appear  that  the  power  is  being  inequitably  or  un- 
justly exercised.-^     But  where  land  is  conveyed  to  a  corpora- 

'- Kurtz   1-.   Beatty,   2  Cranch  C.  20  Palo  Alto  B.  &  I.  Co.  r.  Mahar, 

C,  C99.  65  Iowa,  74.  21  N.  W.,  187. 

•  iHess  r.  Winder,  34  Cal.,  270.  -'i  Selden  v.  Verniilyea,   1   Barb., 

1"  Corcoran  1:  Doll,  3.5  Cal.,  476.  58. 


CHAP.  VI.  I         AFFECTING  REAL  PROPERTY.  321 

tion  in  trust  to  be  used  for  the  purposes  of  a  public  street,  the 
owner  of  property  on  such  street  is  regarded  as  a  cestui  que 
trust  with  reference  to  such  land,  and  may  enforce  the  execu- 
tion of  the  trust   by   restraining  its   violation. 22     And   a   re- 
mainder-man is  entitled  to  an  injunction  until  final  hearing  to 
prevent  a  sale  of  the  trust  estate  under  a  judgment  against 
the  trustee  or  tenant  for  life  in  whom  the  title  is  vested.^^ 
But  the  cestui  que  trust  of  lands  in  a  case  where  the  trust  is 
created  for  his  own  benefit,  can  not  by  investing  his  individual 
means  in  building  upon  the  lands  create  a  trust  in  his  own 
favor  to  the  prejudice  of  his  judgment  creditors.     And  the 
creditors  may  invoke  the  aid  of  equity  to  prevent  such  a  diver- 
sion of  the  debtor's  means,  and  on  their  application  the  pay- 
ment of  rents  by  the  trustees  to  the  debtor  will  be  enjoined 
and  a  receiver  appointed  to  apply  the  rents  in  payment  of  the 
judgment.2"^     So  when  one  has  j^urchased  land  with  his  own 
money,  the  title   being   taken  by   a   third   person,   so  that   a 
resulting  trust  exists  in  favor  of  the  real  purchaser,  who  is 
in  possession,   he  may  restrain  the   enforcement  out  of  such 
land  of  a  judgment  against  the  holder  of  the  legal  title,  the 
judgment  creditor  being  chargeable  with  notice  of  the  trust.^* 
And  where  a  trustee,  holding  the  legal  title  to  real  estate  for 
certain  beneficiaries,  has  perverted  his  powers  as  trustee,  mis, 
applied  the  proceeds  of  sales  of  the  trust  estate  and  refused  to 
account  to  the  beneficiaries,  he  may  be  enjoined  from  a  threat- 
ened sale  of  other  portions  of  the  property,  his  insolvency  be- 
ing shown. -"^     So  when  plaintiff  is  in  possession  and  has  made 
valuable  improvements  under  a  parol  agreement  to  convey  and 
is  entitled  to  a  specific  performance,  he  may  enjoin  creditors 
of  his  grantor  from  levying  upon  the  land  under  judgments 
against  the  vendor,  the  agreement  being  made  while  the  vendor 

22  Lawrence    r.    Mayor,    2    Barb.,  Ch.,  120,  affirmed  by  the  Court  of 
577.  Appeals,  lb.,  729. 

23  Keaton  v.  Baggs,  53   Ga.,  22tJ.  -■■  Ferrin  r.  Errol,  59  N.  H.,  234. 

24  Johnson  v.  Woodruff,  4  Halst,  -«  Albright  r.  Albright,  91  N.  C, 

220. 
21 


322  INJUNCTIONS.  [CIIAP,  VI. 

was  solvent  and  with  no  intention  to  defraud  his  creditors.27 
And  where  defendant  had  agreed  with  plaintiif  to  devise  to  her 
certain  premises  if  she  would  live  with  and  care  for  him  dur- 
ing the  remainder  of  his  life,  plaintiff  having  complied  with 
the  contract  upon  her  part  was  allowed  an  injunction  to  re- 
strain defendant  from  conveying  the  premises  to  a  third  per- 

§331.    Tenant  for  life  and  remainder-man;  emblements.    As 

between  the  tenant  for  life  and  the  remainder-man,  it  is  held 
that  mere  apprehensions  that  the  tenant  is  about  to  remove 
property  from  the  estate  are  not  sulRcient  foundation  for 
an  injunction  against  such  removal,  but  such  facts  and  cir- 
cumstances must  be  set  forth  as  will  show  that  the  apprehen- 
sions are  well  founded,  and  this  being  done  equity  may  in- 
terfere.-^ And  an  isolated  conversation  between  the  tenant 
for  life  and  the  remainder-man,  in  which,  under  the  influence 
of  ardent  spirits  and  excited  by  a  quarrel,  the  former  has 
threatened  a  removal  of  the  property,  will  not  warrant  a  court 
in  granting  an  injunction.^*^  Such  facts  and  circumstances 
must  be  shown  as  are  sufficient  to  constitute  a  reasonable 
ground  for  apprehending  that  the  tenant  for  life  intends  the 
commission  of  a  fraud,  and  thereby  to  defeat  the  ulterior  es- 
tate by  the  destruction  or  removal  of  the  propert}^^^  And 
where  plaintiff  seeks  by  his  action  the  enforcement  of  a  ven- 
dor's lien  upon  real  estate,  he  is  not  entitled  to  an  injunction 
to  prevent  the  removal  from  the  premises  of  emblements  used 
in  the  cultivation  of  the  land,  which  are  not  permanently 
attached  thereto,  and  which  have  been  placed  upon  the  land 
after  the  sale  under  which  the  lien  is  claimed.-'^^ 

27  Brown   ^'.   Prescott,    63  N.   H.,  "lo  Airs   v.   Billops,    4   Jones   Eq., 

61.  17. 

2H  Pflugar  r.  Pultz,  43  N.  J.  Eq.,  si  Mercer  v.  Byrd,   4   Jones  Eq., 

440,  11  Atl.,  123.  358. 

2»  Swindall  v.   Bradley,   3   Jones  ■'-  McJiinkin  v.  Dupree,  44  Tex., 

Eq.,  353.  500. 


CHAP.  VI.]  AFFECTING   REAL   mOPERTY,  323 

§332.  Party- wall  agreements;  opening  windows  in  party- 
wall  enjoined.  Upon  the  question  of  relief  by  injunction 
against  tlie  breacli  of  party-wall  agreements  between  the  own- 
ers of  adjacent  premises,  the  courts  seem  to  be  averse  to  ex- 
tending their  preventive  aid  in  limine.  And  where  plaintiff 
and  defendants  are  adjacent  lot  owners  and  have  entered  into 
a  party-wall  agreement,  a  disregard  of  its  terms  by  defend- 
ants in  the  construction  of  the  party-wall  will  not  justify  an 
injunction  before  the  final  hearing  when  no  irreparable  in- 
jury is  shown.33  ji^^  where  a  mandatory  injunction  was 
sought  to  compel  defeniiant  to  tear  down  a  party-wall  which 
projected  a  short  distance  upon  plaintiff's  premises,  the  relief 
was  denied,  leaving  the  plaintiff  to  his  remedy  in  damages 
to  be  recovered  in  an  action  of  trespass.^-*  But  the  rule  is 
Avell  established  that  an  injunction  is  the  appropriate  remedy 
to  prevent  an  adjacent  owner  of  real  property  from  opening 
or  using  windows  through  a  party-wall  between  the  premises.^^ 
And  a  mandatory  may  properly  be  granted  requiring  the  clos- 
ing up  of  windows  already  opened.^^  And  in  such  case  the  in- 
junction will  be  broad  enough  to  compel  the  defendant,  not 
merely  to  patch  up  the  openings,  but  to  make  the  wall  as 
solid  as  a  party-wall  should  be.^'^  An  injunction  is  also  the 
appropriate  remedy  to  prevent  the  erection  of  additional  stories 
on  a  party-wall  in  violation  of  the  agreement  of  the  parties.^^ 

§  333.  Injunction  refused  when  party  protected  by  lis  pen- 
dens. Relief  by  injunction  against  a  transfer  of  real  estate 
by  defendant  which  the  plaintiff'  seeks  to  prevent  will  ordi- 

33  Barton  v.  Moffit,  3  Ore.,  29.  So.,  308,  5  L.  R.  A.,  298,  13  Am. 

34  Mayer's  Appeal,  73  Pa.  St.,  164.  St.  Rep.,  60. 

35  Dauenhauer  v.  Devine,  51  36  Dunscomb  v.  Randolph,  107 
Tex.,  480;  Sullivan  v.  Graffort,  35  Tenn.,  89,  64  S.  W.,  21,  89  Am.  St 
Iowa,  531;     Harber  v.  Evans,  101  Rep.,  915. 

Mo.,  661,  14  S.  W.,  750,  10  L.  R.  A.,  37  Bartley  v.  Spanieling,  21  D.  C, 

41,  20  Am.    St.  Rep.,   646;     Duns-  47. 

comb  V.  Randolph,  107  Tenn.,  89,  38  Calmelet    v.     Sichl,    48    Neb., 

64  S.  W.,  21,  89  Am.  St.  Rep.,  915;  505,  6T  N.  W.,  467. 

Graves   v.    Smith,   87   Ala.,  450,   6 


324  INJUNCTIONS.  [chap.  vi. 

narily  be  refused  when  the  effect  of  filing  the  bill,  which  op- 
erates as  lis  pendens,  is  to  afford  sufBcient  protection  against 
the  transfer  of  the  property  pendente  lite.^^  And  upon  a  bill 
to  obtain  the  surrender  and  delivery  of  a  deed,  and  to  restrain 
defendant  from  disposing  of  the  land  upon  allegations  of  fraud, 
where  it  is  not  shown  that  defendant  is  insolvent,  and  the  fraud 
is  denied  by  the  answer  and  affidavits,  and  the  only  danger 
to  be  feared  is  that  defendant  may  sell  the  land,  and  thus 
make  the  purchaser  a  necessary  party  to  the  litigation,  equity 
will  refuse  to  enjoin,  since  the  doctrine  of  lis  pendens  affords 
sufficient  protection  in  such  a  case  against  a  purchaser 
pendente  lite^'^ 

§  334.  Sale  of  purchase-money  notes  by  vendor  who  has 
given  bond  for  title.  When  the  vendor  of  real  property,  who 
has  only  given  a  bond  for  title,  the  fee  still  remaining  in  him, 
has  transferred  the  notes  received  by  him  for  the  purchase- 
money,  the  fact  that  he  is  liable  as  indorser  upon  the  notes 
and  the  purchaser  is  insolvent,  will  not  warrant  an  injunction 
against  a  sale  of  the  property,  when  it  is  not  shown  that  the 
land  is  an  insufficient  security,  or  that  it  has  depreciated  in 
value,  or  that  any  waste  has  been  or  is  about  to  be  eom- 
mitted.^i  So  one  who  has  a  vendor's  lien  upon  land  for  un- 
paid purchase-money,  and  who  afterward  acquires  the  fee,  a 
judgment  lien  having  in  the  meantime  attached  to  the  land, 
can  not  restrain  its  sale  under  execution  upon  the  judgment, 
since  by  giving  proper  notice  of  the  existence  of  his  lien  his 
rights  will  be  protected  and  a  sale  will  be  subject  to  his 
lien.42 

§335.  When  partition  enjoined;  sale  under  execution  not 
enjoined  after  partition.  An  injunction  has  been  allowed  to 
restrain   defendant   ironi   proceedings   for   a   partition  of  real 

30  Smith  V.  Malcolm,  48  Ga.,  343;  'i  Williams    r.    Stewart,   56    Ga  . 

Powell  w.  Quinn,  49  Ga.,  523.  663. 

40  Smith   V.  Malcolm,  48  Ga.,  3-;3.         '-  Messmore  r.  Stephens.  83  Ind.. 

524. 


(  ITAI'.  VI.]  AFFECTING    KEAL    PKOrERTY.  325 

property  until  the  repnyniont  of  jnirchase-money  advanced  by 
plaintiff  for  the  purchase  of  defendant's  interest.  Thus,  where 
complainant  has  paid  the  entire  purchase-money  upon  a  pur- 
chase of  real  estate,  taking  the  title  to  himself  and  defendant 
jointly,  upon  the  agreement  of  the  latter  to  pay  one-half  of  the 
purchase-money,  and  complainant  has  also  paid  taxes  upon 
the  premises  and  made  valuable  improvements  thereon,  he 
has  been  allowed  an  injunction  to  restrain  defendant  from 
proceeding  with  a  partition  suit  until  repayment  of  the  amount 
due  to  complainant.*^  But  the  purchaser  of  real  estate  under 
a  proceeding  for  partition  takes  it  subject  to  the  lien  of  exist- 
ing judgments,  and  in  the  absence  of  fraud  he  will  not  be 
allowed,  after  his  purchase,  to  enjoin  a  sale  of  the  premises 
under  execution  upon  such  judgments.** 

§336.  Mechanics'  lien  proceeding,  when  not  enjoined. 
Where,  under  the  laws  of  a  state  giving  a  lien  to  mechanics  for 
labor  and  materials  furnished  in  the  erection  of  buildings,  the 
remedy  for  the  enforcement  of  such  lien  is  by  an  action  at 
law,  and  equity  has  no  jurisdiction  to  enforce  or  foreclose  the 
lien,  a  court  of  equity  will  not  enjoin  a  proceeding  at  law 
for  the  enforcement  of  such  lien  upon  the  application  of 
another  creditor  claiming  a  lien  of  the  same  kind,  merely  be- 
cause such  creditor  claims  priority  in  equity  over  the  lien  of 
defendants  in  the  injunction  suit.  Such  a  case,  it  is  held, 
presents  no  ground  for  equitable  relief,  and  the  parties  will  be 
left  to  pursue  their  legal  remedies  in  the  courts  of  law.*^ 

§  337.  Dower  proceeding-;  rents  and  profits;  claimant  under 
administrator's  sale.  Upon  a  bill  by  an  heir  at  law  and  de- 
visee under  the  will  of  a  deceased  testator  to  have  the  widow's 
dower  determined,  to  warrant  an  injunction  against  a  trans- 
fer of  the  property  and  a  receiver  of  the  rents  and  profits 
pendente  lite,  it  is  not  sufficient  to  allege  merely  that  the  rents 
are  in  jeopardy,  but  it  must  also  be  shown  how  they  are  jeop- 

43  Maloy  V.  Sloan,  44  Vt,  311.  «  Hall  v.  Hinckley,  32  Wis.,  362. 

*4  Wood  V.  Winings,  58  Ind.,  322. 


326  INJUNCTIONS.  [chap.  VI. 

ardized.  And  in  such  case,  in  the  absence  of  any  allegation 
that  the  rents  and  profits  of  the  realty  supposed  to  be  subject 
to  dower  will  be  lost  by  reason  of  the  insolvency  of  those  re- 
ceiving them,  or  that  the  plaintiff  has  not  an  adequate  remedy 
at  law  for  such  of  the  rents  as  he  ftaay  be  entitled  to,  the  re- 
lief will  be  denied.^^  So  where  plaintiff,  claiming  title  to 
realty  under  an  administrator's  sale,  obtains  an  injunction 
against  the  heirs  to  restrain  them  from  asserting  title  to  the 
property,  but  fails  to  make  out  a  satisfactory  title  to  the 
premises,  the   injunction  will  be  dissolved.^^ 

§  338,  Effect  of  conveyance  made  by  one  enjoined.  As  re- 
gards the  effect  of  a  conveyance  of  real  estate  made  by  one 
who  is  enjoined  from  conveying,  it  is  held  that  where  defend- 
ant proceeds  to  execute  a  conveyance  in  defiance  of  an  in- 
junction prohibiting  him  from  so  doing,  the  effect  of  the  in- 
junction is  only  to  render  the  conveyance  inoperative  so  far 
as  concerns  the  interest  of  the  complainants  in  whose  behalf 
the  relief  was  allowed.^^ 

§  339.  Judgment  creditor  not  enjoined  by  legatees  or  de- 
visees. As  between  judgment  creditors  and  devisees  of  a 
specific  portion  of  the  estate  of  a  deceased  debtor,  equity  will 
not  usually  interfere  in  behalf  of  the  devisees.  Thus,  where 
a  creditor  has  obtained  a  decree  specifically  authorizing  a  levy 
upon  the  estate  that  belonged  to  the  debtor  at  the  time  of  his 
death,  in  whosesoever  hands  the  same  may  be,  he  wnll  not  be 
enjoined  at  the  suit  of  specific  legatees  or  devisees  from  levy- 
ing upon  that  portion  of  the  estate  devised  to  them,  on  the 
ground  that  the  testator  had  set  apart  a  particular  portion  of 
his  estate  for  the  payment  of  his  debts.  In  such  a  case  the 
legatees  are  regarded  in  equity  merely  as  volunteers,  whose 
rights  ai-e  subordinate  to  those  of  the  judgment  creditors."*** 

■lo  Knighton   v.   Young,     22    Md.,  4s  Greenwald       v.       Roberts,       4 

359.  Heisk..  494. 

»T  Casanave  v.  Spear,  23  La.  An.,  ■»»  Maxwell    r.    Maxwell,   Charlt. 

519.  R.  M.,  462. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  327 

Nor  will  one  of  several  joint  devisees  of  land  be  restrained 
from  entering  thereon  and  taking  possession  of  a  portion  of 
the  estate  devised  to  them  separately,  where  the  injunction  is 
asked  by  a  tenant  claiming  under  the  other  devisees.^*^  But 
a  legatee  entitled  to  a  distributive  share  of  an  estate  may  have 
an  injunction  until  the  hearing  to  restrain  the  executor  of  the 
estate  from  levying  an  execution  upon  real  estate,  the  proceeds 
of  which  if  collected  would  be  assets  to  which  the  legacy  would 
attach.^i  And  where  one  of  the  heirs  of  an  intestate  received 
an  advancement  during  the  life  of  the  deceased  in  full  of  his 
share  of  the  estate,  a  sale  of  the  intestate's  land  under  a  judg- 
ment against  the  heirs  was  enjoined.^- 

§  340.  Writ  of  restitution  not  enjoined.  Questions  growing 
out  of  litigation  concerning  title  to  real  property,  and  which 
are  properly  determinable  in  a  legal  forum,  will  not  be  recog- 
nized as  the  foundation  for  relief  in  equity  against  the  pro- 
ceedings. And  where,  under  a  conviction  of  forcible  entry  and 
detainer,  a  writ  of  restitution  is  awarded  the  successful  party, 
equity  will  not  enjoin  proceedings  for  the  enforcement  of 
the  writ  upon  the  ground  that  complainant  in  the  injunction 
suit  is  the  rightful  owner  of  the  land  under  an  older  title.-'*^ 
Nor  will  a  writ  of  restitution  be  enjoined  where  no  grounds 
of  irreparable  injury  are  shown,  and  where  the  real  purpose 
of  the  bill  is  to  quiet  complainant's  possession  and  to  suppress 
future  litigation  concerning  the  property.^^ 

50  Baldwin  r.  Darst,  3  Grat.,  132.  pressing   future    litigation    at   law 

51  Dorsey  v.  Simmons,  49  Ga.,  by  perpetual  injunction.  If  it  ap- 
245.  peared  by  the  complaint  and  afR- 

52  Dyer  v.  Armstrong,  5  Ind.,  437.  davit    that    the     defendants    were 

53  Hamilton  v.  Hendrix's  Heirs,  doing  or  were  threatening  to  do, 
1  Bibb,  67.  or  were  procuring  to  be  done,  or 

5i  Tevis   r.   Eilis,     25     Cal.,    515.  were   suffering    to    be    done,    some 

Shaffer,    J.,    delivering    the    opin-  act  in  violation  of    the    plaintiff's 

ion  of  the  court,  says:     "The  prin-  rights    respecting    the     subject   of 

cipal  purpose  of  this  action  is  to  the  action  and   tending  to   render 

obtain  a  decree   quieting  the  pos-  the  judgment  ineffectual,  or  tend- 

session   of   the   plaintiff   and    sup-  Ing  to   the   great  and   irreparable 


328  INJUNCTIONS.  [CIIAI-.  VI. 

§  341.  Judgment  for  breach  of  covenants,  when  enjoined. 
A  court  of  equity  may  properly  compel  the  purchaser  of  land 
to  accept  a  good  title  tendered  by  the  personal  representatives 
of  his  grantor,  who  had  sold  with  covenants  of  warranty,  not- 
withstanding the  purchaser  has  obtained  judgment  for  the 
breach  of  covenants  contained  in  his  grantor's  deed;  and  under 
such  circumstances  the  court  will  award  an  injunction  against 
the  enforcement  of  the  judgment.^^^ 

§  342.  Entry  under  right  reserved ;  relief  against  penalty  in 
deed  of  trust.  An  entry  upon  land  under  rights  reserved  to 
the  grantor  by  the  contract  of  sale  will  not  of  itself  warrant 
the  interference  of  equity.  Thus,  a  vendor  who  has  merely 
given  a  bond  for  conveyance  with  a  provision  that  he  may  re- 
enter in  case  of  default  in  payment  of  the  purchase-money,  will 
not  be  enjoined  from  re-entering  if  the  purchaser  is  in  de- 
fault.^*^  But  the  relief  has  been  allowed  against  a  stipulation 
in  the  nature  of  a  penalty  in  the  bond  or  deed  of  trust.  Thus, 
where  it  was  provided  that  in  case  of  default  of  the  debtor  to 
pay  the  annual  interest  the  principal  should  be  deemed  due 
and  payable,  the  provision  being  construed  in  the  nature  of  a 
penalty,  relief  has  been  allowed  against  its  enforcement.''" 

§  343.  Fruit  trees  and  shrubbery;  confusion  of  boundaries; 
tenants  in  common.  An  injunction  is  the  proper  remedy  in 
behalf  of  a  vendee  in  possession  to  restrain  the  vendor  from 
the  removal  of  fruit  trees  and  ornamental  shrubbery,  notwith- 
standing vendor  claims  the  right  to  such  removal  under  a 
verbal   reservation.      Such    improvements    are     considered    as 

injury  of  the  plaintiff,  an   injiinc-  their      purpose       into       execution, 
tion  might  go,  staying  the  act  in  Should   the  defendants  succeed  i.i 
view  of  its  consequences.    But  the  their  design,  the  remedies  at  law- 
complaint  does  not  present  a  case  would     be     speedy,     adequate   and 
of  that  impression.     It  charges,  as  complete.     The     order     dissolving 
a  ground   for  the  injunction,   that  the  injunction  is  affirmed." 
the  defendants   intend   to   disseize         ■■■•  Reese  r.  Smith,  12  Mo.,  344. 
the   plaintiff   of    his     lands— that,         •'•«  Boyd  r.  Lofton,  34  Ga.,  494. 
and  no  more;    and  asks  that  they         f^"  Mayo   r.  Judah,  5   Munf.,  495. 
may   be   restrained    from   carrying 


(  ll.Vr.  VJ.J  AFFECTliXG    HEAL    i'KOPEKTY.  329 

l)assing  with  the  realty  and  the  right  of  the  purchaser  will  b<' 
protected  in  equity .^'^  It  is,  however,  incumbent  upon  com- 
plainant to  set  forth  clearly  the  facts  and  circumstances  on 
which  he  relies  for  relief,  and  to  warrant  an  injunction  against 
proceedings  at  hiAV  on  the  ground  of  confusion  of  boundaries 
complainant  must  allege  the  fact  of  such  confusion  and  the 
circumstances  producing  it.^^  But  an  injunction  may  be 
granted  to  prevent  the  execution  of  a  writ  of  habere  faciaa 
possessionem,  under  a  judgment  in  ejectment,  until  the  true 
boundary  line  of  the  premises  to  be  surrendered  can  be  de- 
termined, when  such  line  is  in  doubt  and  when  the  execution 
of  the  writ  upon  the  boundary  as  claimed  b}^  plaintiff  in  eject- 
ment would  result  in  irreparable  injury  to  plaintiff  in  the  in- 
junction suit.^*^ 

§  344.  Injunctions  as  between  tenants  in  common.  Relief  by 
injunction  is  sometimes  allowed  between  tenants  in  common 
for  the  purpose  of  preserving  the  estate  and  preventing  serious 
injury.  Thus,  a  judgment  at  law  for  the  partition  of  real 
estate  at  the  suit  of  some  of  the  tenants  in  connnon  may  be 
enjoined  by  the  other  tenants  upon  an  allegation  that  the 
partition  can  not  be  made  without  serious  injury  to  the  own- 
ers. And  under  suich  circumstances  the  injunction  should  be 
continued  to  the  hearing,  that  the  court  may  upon  the  proofs 
decide  whether  the  partition  would  be  for  the  interest  of  the 
parties.'''  But  as  between  tenants  in  common  of  realty,  equity 
will  not  enjoin  one  tenant  from  selling  crops  from  the  premises 
M^hen  there  is  no  such  destruction  of  the  estate  as  amounts 
to  waste,  even  after  a  decree  for  a  partition  of  the  premises.''- 
And  pending  a  proceeding  in  equity  for  partition  and  before 
its  completion,  the  parties  being  tenants  in  common  until  such 
completion,  equity  will  not  interfere  by   injunction  with  the 

■•«  Smith  r.  Price,  39  111.,  28.  '=1  Gash  r.  Ledbetter,  6  Ired.  Eq.. 

••9  Foster,  Ex  parte,  11  Ark.,  304.  183. 

eo  Jones    v.    Brandon,     60     Miss.,  •;- Bailey  /■.  Hobson,  L.  R.  5  Ch., 

556.  180. 


330  INJUNCTIONS.  [chap,  VI. 

existing  possession  of  the  premises,  nor  will  it  enjoin  one  of 
the  co-tenants  from  proceeding  to  collect  his  portion  of  the 
rent  due  prior  to  the  partition.*''^  g^i^  ^  plaintiff  claiming  a 
moiety  of  an  estate  as  a  tenant  in  common  with  the  defendant, 
and  being  entitled  to  a  receiver  of  the  rents  and  profits  of 
the  moiety  claimed,  may  have  an  injunction  to  prevent  de- 
fendant from  receiving  such  rents  and  profits.^'*  And  the 
co-owner  of  shade  trees  standing  upon  the  boundary  line  be- 
tween his  and  the  other  co-owner's  property  is  entitled  to  an 
injunction  to  restrain  the  latter  from  cutting  down  such 
trees.^^  And  where  the  deed  under  which  tenants  in  common 
hold  title  to  real  estate  provides  that  an  alley  extending  across 
the  premises  shall  be  kept  open  for  the  benefit  of  adjoining 
owners,  one  of  the  tenants  in  common  may  enjoin  the  obstruc- 
tion of  the  alley  by  the  other. *"^ 

§345.  Sale  of  trust  property,  when  enjoined;  waiver  of 
lien  by  judgment  creditor.  "Where  a  judgment  creditor  is  at- 
tempting to  enforce  his  judgment  by  a  sale  of  real  estate  con- 
veyed by  the  debtor  in  trust  before  the  debt  on  which  the 
judgment  was  rendered  was  incurred,  an  injunction  may  be 
allowed  to  restrain  the  sale  until  the  question  of  whether  the 
trust  was  created  in  fraud  of  creditors  can  be  determined.*^'^ 
And  where  the  creditor  may  collect  his  judgment  out  of  prop- 
erty which  his  debtor  has  not  conveyed,  but  refuses  or  fails 
to  do  so,  he  may  be  enjoined  from  proceeding  with  the  en- 
forcement of  his  judgment  against  property  which  has  passed 
to  a  grantee  of  the  debtor,  and  as  to  which  the  judgment 
creditor  has  waived  his  lieii.''^ 

§  346.  Commissioner  in  chancery,  when  enjoined  from  sale. 
Courts  of   chancery   have   power   to    restrain    the    proceedings 

G'!  Hughes  r.  D'Arcy,  I.  R.  8  Eq.,  484,  32  Am.  St.  Rep.,  305. 
71.  <i«i  Swift    r.    Coker,    83    Ga.,    789, 

«4  Hargrave  v.  Hargrave,  9  Beav.,  10  S.  E.,  442,  20  Am.  St.  Rep.,  347. 
r,49.  "'"  McCann  v.  Taylor,  10  Md.,  418. 

•isMusch   r.   Burkhart,   83   Iowa,         «s  Hurd  r.  Eaton.  28   111.,  122. 
301,   48  N.   W..   102.5,   12  L.   R.  A., 


CHAr.  VI.]  AFFECTING    REAL    PROPERTY.  331 

of  their  own  officers,  if  necessary,  and  a  special  commissioner 
in  chancery  appointed  to  sell  lands  under  a  decree  may  be 
enjoined  in  a  proper  case,  he  occupying  the  same  position 
that  a  sheriff  would  under  like  circumstances.  But  in  enjoin- 
ing proceedings  under  a  decree  for  the  sale  of  realty,  the  court 
will  not  inquire  into  the  rights  of  parties  existing  antecedent 
to  the  rendering  of  the  decree  and  which  might  have  been 
inquired  into  at  that  time.^^ 

§  347.  Irregnlarities  in  municipal  proceedings  no  ground  for 
injunction.  Mere  irregularities  in  the  proceedings  of  munici- 
pal tribunals  in  the  sale  of  lands  for  taxes,  or  in  the  opening 
of  streets  for  the  public  benefit,  will  not  warrant  equity  in 
interfering  to  restrain  such  proceedings,  since  a  court  of  equity 
will  not  sit  as  a  court  of  errors  to  review  the  action  of  other 
tribunals.'^*^  Thus,  alleged  irregularities  in  a  sale  of  lots  for 
taxes  afford  no  ground  for  the  interference  of  equity  to  re- 
strain the  purchaser  from  afterward  selling  the  same  lots, 
the  two  sales  being  entirely  independent  of  and  distinct  from 
each  other. "^  Nor  will  a  court  of  equity  interfere  to  restrain 
the  enforcement  of  judgments  rendered  against  complainant 
for  the  benefit  of  his  property  by  the  opening  of  certain  streets, 
on  the  ground  of  defects  and  irregularities  in  the  proceedings, 
the  proper  remedy  for  such  grievances  being  by  certiorari^" 

§  348.  Delay  in  giving  deed.  Where  a  purchaser  in  com- 
pliance with  the  contract  of  sale  has  actually  paid  the  pur- 
chase price,  but  the  vendor  has  delayed  for  three  years  to  give 
title,  the  vendor  will  not  be  allowed  to  enjoin  proceedings  at 
law  to  recover  the  amount  paid,  without  showing  some  equita- 
ble excuse  for  his  delaj'  in  giving  a  deed."^ 

§  349.  Municipal  authorities  enjoined  from  encroaching  on 
private  property.     A  municipal  corporation  may  be  restrained 

69  People,  etc.  v.  Gilmer,  5  Gilm.,  vi  st.  Louis  v.  Goode,  21  Mo.,  216. 
242.  •!-2  Ewing  v.  St.  Louis,  5  Wal.,  413. 

TO  St.    Louis    r.   Goode,     21     Mo.,         ts  Anderson   v.  Frye,   18   111.,  94. 
216;     Ewing  v.   St.  Louis,   5   Wal., 
413. 


332  INJUNCTIONS.  [CIIAI'.  VI. 

from  encroaching  upon  the  property  of  private  citizens,  al- 
though such  encroachments  are  made  under  pretense  of  pre- 
venting the  obstruction  of  public  streets.'-^  The  jurisdiction 
is  exercised  in  such  cases  on  the  ground  of  quieting  title,  and 
where  complainant  has  been  for  twentv  years  in  continued 
and  adverse  possession  of  public  ground  or  of  a  public  street, 
he  is  entitled  to  the  aid  of  equity  to  prevent  the  municipal  au- 
thorities from  interfering.'''^' 

§  350.  Removal  of  barracks ;  ditch  on  public  domain.  Of- 
ficers of  the  government  will  not  be  restrained  from  remov; 
ing  temporary  buildings  erected  as  barracks  and  a  military 
hospital,  the  buildings  not  being  incorporated  into  the  soil, 
and  there  being  no  assertion  of  title  on  the  part  of  the  gov- 
ernment, or  of  an  intention  to  retain  adverse  possession  of  the 
realty.'*'  Nor  will  a  defendant  be  enjoined  from  doing  upon 
the  public  domain  that  which  he  is  authorized  by  the  para- 
mount law  to  do,  as  the  running  of  water  through  a  com- 
pleted ditch  dug  through  an  open,  unoccupied  and  unculti- 
vated portion  of  the  public  domain,  which  is  used  only  for 
grazing  purposes  by  complainant.'^'^ 

§  351.  Disinterment  of  bodies,  when  not  enjoined.  Where 
land  has  been  conveyed  to  a  religious  congregation  which 
uses  it  for  burial  purposes,  and  commissioners  are  afterward 
appointed  by  act  of  legislature  to  sell  the  ground  and  remove 
the  bodies  interred  to  other  ground  purchased  with  the  pro- 
ceeds of  the  sale,  lot  owners  in  the  original  burial  ground  will 
^ot  be  allowed  to  enjoin  the  disinterment  of  the  bodies,  the 
legislature  having  the  paramount  right  to  the  control  of  the 
property  in  such  manner  that  it  shall  not  be  injurious  to 
others.'^ '^ 

T-t  Dudley     r.     Trustees,     12     B.         7r.  Meigs'  Appeal,  62  Pa.  St.,  28. 
Mon.,  610.  ''  Rivers    r.    Burbank,    13     Nev., 

-•'•  Dudley     r.     Trustees,     12     B.  398. 
Mon.,   CIO.     See    also    Manchester         "-^  Kincaid's    Appeal,   66   Pa.    St.. 

Cotton  Mills  r.  Town  of  Manches-  411. 
ter,  25  Grat.,  825. 


CHAP.  VI.]  AFEECTIXG    KEAL    I'KOrEItTV.  333 

§  352.  Sale  of  school  property  under  execution  enjoined. 
In  Missouri  it  is  held  that  an  execution  can  not  be  levied 
upon  a  building  used  for  school  purposes,  or  upon  the  real 
estate  on  which  it  stands,  and  that  an  injunction  will  lie  to 
prevent  a  sale  of  such  property  under  execution."" 

§  353.  Enjoining  removal  of  fixtures,  not  a  conversion  of 
fixtures.  An  in  junction  has  been  granted  in  behalf  of  the 
owners  of  a  mill  to  prevent  the  sale  under  execution  of  an 
engine  and  boiler  which  were  fixtures  of  the  mill.'"^  But  the 
obtaining  and  serving  an  injunction  restraining  the  removal 
of  fixtures  from  real  estate  does  not  amount  to  a  conversion 
of  such  fixtures  so  as  to  entitle  defendant  in  the  injunction 
suit  to  maintain  trover  therefor.^^ 

§  353  a.  Judgment  sale  of  realty  in  bulk.  The  sale  under 
execution  of  several  parcels  of  real  estate  in  bulk  instead  of 
in  separate  pieces  is  a  fraud  in  law  and  void  where  it  appears 
that  the  value  of  the  property  is  greatly  in  excess  of  the 
amount  of  the  judgment  to  be  satisfied ;  and  in  such  case,  an 
injunction  may  be  granted  to  restrain  the  sheriff  and  the  pur- 
chaser at  the  sale  from  turning  plaintiff'  out  of  possession.**- 

""  State    );.    Tiedemann,    69    Mo.,  so  Patton  v.  Moore,  16  West  Va., 

306.      As   to    the    allegations    suffi-  428. 

cient     to     warrant   an     injunction  si  Lacey  v.  Beaudry,  53  Cal.,  693. 

against  a   guardian's   sale  of  real  S2  Forbes  r.  Hall,  102  Ga.,  47,  28 

property   in   Indiana,   see  Scott  v.  S.  E.,  915,  66  Am.  St.  Rep.,  152. 
Silvers,  64  Ind.,  76. 


334  INJUNCTIONS.  [CJIAl'.  VI. 


11.     Injunctions  in  Aid  of  Possession. 

§  354.     English  Court  of  Chancery  averse  to  interfering  with  possession. 

355.  Possession  not  enjoined  when  title  not  established  at  law. 

356.  Injunction  allowed  when  defendant's  possession  an  interruption 

of   plaintiff's. 

357.  Loss   of   conveyance;    proceedings   to  which   plaintiff  is   not  a 

party. 

358.  Neglect  to  execute  decree  for  conveyance  ground  for  injunction. 

359.  Possession  without  legal  title;   remedy  at  law. 

360.  Remedy  at  law  a  bar  to  injunction. 

361.  Fraudulent  purchase  at  sheriff's  sale. 

362.  Equity  will  not  correct  errors  at  law;  heirs  at  law  and  devisee. 
383.  Effect  of  long  and  peaceable  possession. 

364.  Fraudulent  conduct  by  defendant. 

365.  Tender  of  purchase  money  at  illegal  sale;   injunction  of  state 

court  to   prevent  possession  under  sale  under  judgment  in 
United  States  court. 

366.  When   defendant  not  enjoined  from  leasing. 
366a.  Receiver's  possession  protected  by  injunction. 

§  354.  English  Court  of  Chancery  averse  to  interfering  with 
possession.  Upon  the  question  of  the  extent  to  which  courts 
of  equity  may  interfere  by  injunction  in  aid  of  the  possession 
of  real  property,  or  may  grant  the  aid  of  this  extraordinary 
remedy  in  matters  affecting  such  possession,  a  marked  reluc- 
tance to  the  exercise  of  the  jurisdiction  may  be  observed  run- 
ning through  all  the  cases.  This  reluctance  has  always  been 
noticeable  in  the  decisions  of  the  English  Court  of  Chancery 
upon  questions  affecting  possession,  and  from  a  comparatively 
early  period  that  court  appears  to  have  been  averse  to  the 
granting  of  injunctions  in  aid  of  the  possession  of  real  prop- 
erty .^  This  extreme  reluctance  is  traceable  to  the  fact  that 
that  court  usually  declined  to  entertain  jurisdiction  of  con- 
troversies determining  the  title  or  right  to  possession  of  real 
I)roperty,  leaving  all  such  controversies  to  be  determined  in  a 
legal  forum,  by  the  ordinary  and  accustomed  legal  remedies. 

1  See     Lady     Poine's     Case,      1    Vern.,  156. 


CHAP.  VI.]         AFFECTING  EEAL  PROPERTY.  335 

And  while  in  modern  times  the  stringency  of  the  earlier  Eng- 
lish doctrine  has  been  somewhat  relaxed,  yet  this  branch  of 
the  jurisdiction  can  hardly  be  said  to  be  a  favorite  one  with 
courts  of  equity,  and  its  exercise  is  guarded  by  a  careful  ad- 
herence to  certain  fixed  and  well  settled  principles  which  are 
now  to  be  stated. 

§  355.  Possession  not  enjoined  when  title  not  established  at 
law.  As  a  general  rule  courts  of  equity  will  not  interfere  by 
preliminary  injunction  to  change  the  possession  of  real  prop- 
erty, the  title  being  in  dispute,  and  to  transfer  it  to  one  whose 
rights  are  not  yet  established  at  law.-  Nor  should  an  in- 
junction be  allowed  for  the  mere  purpose  of  restraining  naked 
trespasses  to  realty,  or  for  quieting  the  possession  of  one  who 
shows  no  title.^  And  where  one  has  been  erroneously  put  in 
possession  of  land  under  a  writ  of  restitution,  his  title  not 
having  been  established  at  law,  equity  will  refuse  to  enjoin 
proceedings  instituted  for  the  purpose  of  recovering  posses- 
sion of  the  premises,  the  denial  of  relief  being  based  upon  the 
fact  that  complainant's  title  is  not  yet  established."*  So  where 
a  defendant  has  been  wrongfully  put  out  of  possession  of  real 
property  by  an  abuse  of  legal  process,  and  the  court  has 
awarded  a  writ  of  restitution  to  restore  him,  it  will  not  pass 
upon  the  further  rights  of  the  parties  until  he  has  been  re- 
stored to  possession,  and  will  not,  therefore,  entertain  a  mo- 
tion to  enjoin  the  issuing  of  the  writ  of  restitution,  no  new 
matter  having  intervened  since  the  granting  of  such  writ.^ 
And  a  plaintiff,  having  title  to  real  estate  and  being  in  pos- 
session, can  not  have  an  injunction  in  aid  of  his  possession 
against  defendants  when  it  is  not  shown  that  they  have  dis- 

2  Erie  R.  Co.  v.  Delaware  R.  Co.,  Springs  Co.  v.  Ferguson,  7  S.  Dak., 

6    C.     E.     Green,     283;     Arnold    v.  503,  64  N.  W.,  539. 

Bright,  41  Mich.,  207,  2  N.  W.,  16;  ^  Conway,  Ex  parte,  4  Ark.,  302; 

Toledo,   A.  A.   &  N.    M.   R.    Co.   v.  McGee  r.  Smith,  1  C.  E.  Green,  462. 

Detroit,  L.  &  N.  R.  Co.,  61  Mich.,  4  Thompson    v.    Engle,    3    Green 

9,  27  N.  W.,  715;    Catholicon  Hot  Ch.,   271. 

5  Perry  v.  Tupper,  71  N.  C,  385. 


336  INJUNCTIONS.  [CflAI'.  \i. 

turbed  his  possession,  and  when  the  title  under  which  de- 
fendants claim  does  not  constitute  a  cloud  upon  plaintiff's 
title.6 

§356.  Injunction  allowed  when  defendant's  possession  an 
interruption  of  plaintiff's.  Notwithstanding  the  general  rule 
as  stated  in  the  preceding  section,  by  which  courts  of  equity 
refuse  to  interfere  with  possession  before  the  right  is  de- 
termined at  law,  if  defendant's  possession  is  but  an  interrup- 
tion of  the  prior  possession  of  complainant  whose  right  is 
clear  and  certain,  an  injunction  may  be  allowed  without  com- 
pelling complainant  to  establish  his  title  by  an  action  at  law. 
The  interference  in  such  case  rests,  as  in  cases  of  nuisance, 
upon  a  clear  and  certain  right  to  the  enjoyment  of  the  sub- 
ject in  question,  and  an  injurious  interruption  of  that  right 
which  upon  just  and  equitable  grounds  ought  to  be  prevented.'^ 
So  when  a  purchaser  at  a  sheriff's  sale  has  been  put  in  pos- 
session in  violation  of  an  injunction,  a  mandatory  injunction 
is  proper  to  restore  the  iwssession  which  has  thus  been  wrong- 
fully changed.''  And  plaintiff,  who  has  been  placed  in  posses- 
sion after  a  recovery  in  ejectment,  has  been  allowed  to  re- 
strain defendant  in  the  ejectment  suit  from  depriving  him  of 
and  interfering  with  such  possession.'*  And  the  relief  may  be 
allowed  for  the  purpose  of  quieting  and  protecting  plaintiff's 
possession  which  is  constantly-  invaded  and  interfered  with 
by  defendants  who  are  insolvent,  the  jurisdiction  in  such  case 
being  exercised  for  the  prevention  of  irreparable  injury  and 
a  multiplicity  of  suits. ^"  And  a  vendee  who  is  in  peaceable 
possession  under  his  contract,  pending  his  action  for  specific 
performance,  is  entitled  to  an  injunction  to  protect  his  i)os- 
session.^^    So  where  plaintiff,    suing  in  forma  pauperis  for  the 

•>  Gaskins   v.    Peebles,     44     Tex.,  lo  Mulry    v.    Norton,    100    N.    Y., 

390.  424,  3  N.  E.,  581. 

V  Conway,  Ex  parte,  4  Ark..  302.  nHadfield   r.   Bartlett,  66   Wis., 

«Klinck  r.  Black.  14   S.  C.   241.  634. 

'■>  Romero  r.  Munos,  1  New  Mex- 
ico, 314. 


CHAT.  VI.]  AFFEC'TINC    ItlCAL    ritOI'KItTY.  337 

recovery  of  land,  takes  possessjion  of  part  and  resists  its  re- 
occupation  by  defendant,  the  latter-  may  be  allowed  an  in- 
junction to  restrain  plaintiff  from  further  interference  until 
the  hearing.^-  And  where  the  owner  of  land  sells  a  mill  sit- 
uated thereon,  upon  condition  that  the  title  shall  not  pass 
until  payment  is  fully  made,  the  purchaser  may  be  enjoined 
from  removing  the  mill  beyond  the  state,  his  insolvency  being 
shown.'-'  And  where  the  plaintiff  has  obtained  a  judgment  for 
the  possession  of  land  in  an  appropriate  action,  an  injunction 
will  lie  to  restrain  the  defendant  fi'om  interfering  with  the 
execution  of  a  writ  of  possession.^* 

§  357.  Loss  of  conveyance ;  proceedings  to  which  plaintiff  is 
not  a  party.  Where,  from  the  peculiar  circumstances  of  the 
case,  it  is  impossible  for  defendant  to  establish  his  defense  at 
law  in  an  action  to  recover  possession,  the  strictness  of  the 
rule  may  also  be  departed  from.  Thus,  the  loss  of  one  con- 
veyance in  a  chain  of  title  which  is  necessary  to  establish 
the  defense  to  the  action  will  warrant  equity  in  restraining 
proceedings,  as  well  upon  the  ground  of  accident  as  to  pre- 
vent a  cloud  upon  title.  Under  such  circumstances  defendant 
being  prevented  by  accident  from  perfectl}^  and  adequately  as- 
serting his  title  at  law,  he  is  entitled  to  the  aid  which  equity 
alone  can  give.'-'*  So  where  complainant,  without  fault  upon 
his  part,  has  had  no  opportunity  of  being  heard  at  law,  he  may 
have  the  aid  of  equity  to  protect  him  in  his  possession  as 
owner  of  the  premises.  Thus,  a  perpetual  injunction  will  be 
allowed  against  the  execution  of  a  writ  of  liahere  facias 
possessionem  against  the  pi-emises  of  one  who  was  not  a  party 
to  the  litigation.'*'  And  one  who  is  in  the  quiet  possession  of 
real  estate,  claiming  title  thereto,  may  have  an  injunction  to 

12  Horton  v.  White,  84  N.  C,  297.  i«  Goodnough     v.     Sheppard,     28 

13  Coe  V.   Johnson,  93    Ind.,   418.  111.,     81;       Panton     r.     Manley,     4 

14  Hawkins  r.  McDougal,  126  Bradw.,  210;  Charter  Oak  Life  Ins. 
Ind.,  539,  25  N.  E.,  708.  Co.  r.  Cummings.  90  Mo.,  267,  2  S. 

15  Butch   r.  Lash,  4  Iowa,  215.  W.,  397. 

22 


338  INJUNCTIONS.  [chap.  ti. 

restrain  others  from  dispossessing  him  by  means  of  process 
growing  out  of  litigation  to  which  he  was  not  a  party. ^''' 

§  358.  Neglect  to  execute  decree  for  conveyance  ground  for 
injunction.  Where  proceedings  have  been  instituted  in  a 
court  of  equity  to  establish  the  title  to  real  estate,  and  a  de- 
cree has  been  rendered  that  defendant  make  a  conveyance 
vesting  the  legal  title  in  complainant,  neglect  to  execute  such 
decree  will  warrant  a  mandatory  injunction  to  deliver  posses- 
sion. In  such  case  equit}^  proceeds  upon  the  principle  that  its 
decree,  not  having  been  complied  with,  operates  as  a  convey- 
ance, and  the  right  being  sufficiently  established  an  injunc- 
tion is  a  proper  remedy  for  its  enforcement ;  otherwise  com- 
plainant might  be  compelled  to  resort  to  proceedings  in  eject- 
ment to  obtain  the  possession  to  which  he  is  alread}^  entitled 
by  the  decree,  and  thus  be  greatly  delayed  and  embarrassed.^^ 

§  359.  Possession  without  legal  title ;  remedy  at  law.  In 
general  equity  will  not  interpose  to  prevent  the  enforcement 
of  a  legal  right  except  upon  a  clear  and  satisfactory  showing 
of  a  right  superior  to  that  which  it  is  sought  to  restrain.  In 
accordance  with  this  principle  a  party  in  possession  of  real 
estate,  but  without  legal  title,  has  no  sufficient  equities  as 
against  the  legal  owner  to  enjoin  a  writ  of  restitution  which 
has  been  granted  him  for  the  purpose  of  obtaining  possession 

1"  Banks  V.  Parker,  80  N.  C,  157;  would   disgrace  our   laws   and   ad- 

peans    v.    Bowden,    20     Fla.,    905;  ministration   of  justice  if,  after  a 

Williamson  v.  Russell,  18  West  Va.,  title  to  land  has  been  established 

612.  by   the  adjudication    of    a    court, 

18  Garretson  v.  Cole,  1  Har.  &  J.,  there  could  be  no  way  of  obtaining 

373.     It  is  proper  to  remark  that  possession      but     after    obtaining 

the  decision   of  the    chancellor  in  judgment  in  ejectment."     So  it  is 

this  case  rests  partially    upon    an  said   by   an    eminent    jurist    that 

act  of  legislature.     Hanson,  Chan-  "Courts   of   equity    also    interfere 

cellor,   observes:     "An    injunction  and    effectuate    their   own    decrees 

for  possession  is  not  a  new  thing  in  many  cases  by  injunctions,  in 

In  a  court  of  equity.     It  has  long  the  nature   of   a   judicial   writ  or 

been   used    in   England;     it   is   di-  execution    for     possession    of    the 

Tected     in    certain     cases    by    the  property    in    controversy;     as    for 

aforesaid  act  of  assembly;   and  it  example,    by    injunctions   to    yield 


CHAP.  YI.]         AFFECTING  REAL  PROPERTY.  339 

of  his  premises.^ '^  And  to  warrant  a  court  of  equity  in  en- 
joining proceedings  to  recover  possession  of  realty  it  must 
clearly  appear  that  he  who  seeks  the  relief  is  remediless  by 
the  usual  course  of  proceedings  at  law.  This  not  appearing, 
and  it  not  being  shown  that  the  parties  against  whom  the 
injunction  is  sought  are  insolvent,  the  writ  will  not  be  al- 
lowed.^^ 

§  360.  Remedy  at  law  a  bar  to  injunction.  The  general 
principle  underlying  the  entire  jurisdiction  of  equity  by  in- 
junction, that  the  relief  will  not  be  granted  where  adequate 
remedy  may  be  had  at  law,  applies  with  equal  force  to  cases 
where  relief  is  sought  in  aid  of  the  possession  of  real  prop- 
erty. Wherever,  therefore,  sufficient  redress  may  be  had  in 
the  courts  of  law,  parties  will  be  left  to  pursue  their  remedy 
in  a  legal  rather  than  an  equitable  tribunal.-^  Thus,  where 
parties  are  in  possession  claiming  as  devisees  under  a  will 
which  has  been  admitted  to  probate,  equity  will  not,  pending 
an  appeal  from  the  decision  of  the  probate  court,  aid  an  ad- 
verse claimant  by  injunction  to  remove  them,  since  full  and 
adequate  redress  may  be  had  at  law.^^  So  where  the  object 
of  an  injunction  bill  is  merely  to  obtain  possession  of  land 
upon  which  defendant  has  entered  and  committed  trespasses  and 
removed  the  products  of  the  land,  the  relief  will  be  denied, 
the  remedy  at  law  being  ample  and  complete  for  the  recovery 

up,  deliver,  quiet,  or  continue  the  has  been  applied,  not  merely  to  the 

possession,  followed  up  by  a  writ  lands  in  controversy  in  the  cause, 

of  assistance.     Injunctions  of  this  but    also    to    other    lands   of  the 

sort  are   older   than    the    time  of  party."     2  Story's  Eq.,  §  959. 

Lord    Bacon,   since,     in    his    Ordi-  is  Boinay  v.  Coats,  17  Mich.,  411. 

nances,  they  are  treated  as  a  well  20  Tomlinson    0.   Rubio,   16   Cal., 

known  process.     Indeed,  they  have  202. 

been  distinctly  traced  back  to  the  21  Schlecht's  Appeal,  60  Pa.  St, 

reign   of   Elizabeth    and     Edward  172;    Pfeltz  v.  Pfeltz,  14  Md.,  376; 

the  Sixth,  and  even  of  Henry  the  Tomlinson  v.  Rubio,  16  Cal.,  202; 

Eighth.      In    some    respects    they  Tevis  i\  Ellis,  25  Cal.,  515. 

bear  an  analogy  to  sequestrations;  22  Schlecht's  Appeal,  60  Pa.  St., 

but    the    latter    process,     at     least  172. 
since  the  reign  of  James  the  First, 


340  INJUNCTIONS.  [chap.  VI. 

of  the  premises.23  And  one  who  is  in  possession  of  real  estate 
can  not  enjoin  another  not  in  possession  from  bringing  a  threat- 
ened action  at  law  to  obtain  such  possession,  even  though  it 
be  alleged  that  defendant  has  no  title  or  right  of  possession 
in  the  property,  since  full  redress  may  be  had  in  defense  of 
such  threatened  action  at  law  when  instituted.^^ 

§361.  Fraudulent  purchase  at  sheriff's  sale.  As  we  have 
already  seen,  he  who  seeks  the  aid  of  equity  for  protection  in 
the  possession  and  enjoyment  of  real  property  must  make  a 
clear  and  satisfactory  showing  of  his  right  in  order  to  entitle 
himself  to  protection  by  injunction.  But  where  the  gravamen 
of  the  case  is  that  defendant  has  fraudulently  purchased  com- 
plainant's real  estate  at  a  sheriff's  sale  for  a  merely  nominal 
consideration,  it  is  a  sufficient  compliance  with  the  rule  if 
complainant  states  his  right  or  interest  in  such  manner  as  to 
authorize  him  to  complain  of  the  fraud  and  to  obtain  relief 
against  it.-'' 

§  362.  Equity  will  not  correct  errors  at  law;  heirs  at  law 
and  devisee.  An  injunction  will  never  be  granted  for  the  mere 
purpose  of  correcting  irregularities  and  mistakes  in  proceed- 
ings at  law  which  may  be  remedied  in  the  ordinary  tribunals. 
And  where  the  heirs  at  law  have  brought  suit  to  recover  pos- 
session of  real  estate,  equity  will  not  enjoin  their  proceedings 
at  the  instance  of  a  devisee  under  a  lost  will  which  has  been 
insufficiently  proven.  The  proper  remedy  in  such  a  case  is  for 
the  devisee  to  retrace  his  steps  and  to  correct  his  errors  in 
the  probate  court  where  they  were  made,  since  equity  will  not 
sit  in  review  of  the  errors  and  irregularities  of  other  tribunals.-*' 

§  363.  Effect  of  long  and  peaceable  possession.  Quiet  and 
uninterrupted  possession  of  land  for  a  long  period  of  years 

23  Pfeltz  V.  Pfeltz,  14  Md.,  376.         this   case    was    dissolved    on   thf 

24  Earle's  Admr'x  v.  Hale's  ground  ttiat  the  answer  fully 
Adm'r,  31  Ark.,  473.  denied  the  equity  of  the  bill. 

^•'•Outcalt  /'.  Disborough,  2  Green         -''Clarke  /•.  Clarke,  7  R.  I.,  45. 
Ch.,   214.     But  the    injunction    in 


CHAP.  VI.]  AFFECTING    KEAL    PROPERTY.  341 

constitutes  strong  ground  for  the  interference  of  equity  to 
protect  the  owner  in  the  possession  and  enjoyment  of  his 
property  against  unauthorized  disturbance  and  interruption 
without  due  process  of  law.  And  where  one  has  been  in  the 
peaceable  and  uninterrupted  enjoyment  of  his  premises  for 
more  than  twenty  years,  and  a  municipal  corporation,  under 
pretense  that  his  improvements  encroach  upon  a  public  high- 
Avay,  enters  upon  or  disturbs  the  owner  in  such  possession,  an 
injunction  may  be  awarded  until  the  corporation  shall  have- 
established  its  right  to  the  land  in  question  by  due  course- 
of  law.^^  So  where  property  has  been  in  the  possession  and 
under  the  management  of  defendant  for  a  long  series  of  years, 
equity  will  be  reluctant  to  interfere  with  such  possession  by 
the  appointment  of  a  receiver  and  the  granting  of  an  injunc- 
tion in  limine. '^^  And  when  plaintiff's  title  and  right  to 
possession  have  been  established  at  law  after  a  long  series  of 
vexatious  litigations,  but  defendant  still  asserts  title,  inter- 
feres with  plaintiff's  title  and  possession,  continues  to  make 
leases  and  sales  of  portions  of  the  property  and  commits  waste, 
a  proper  case  is  presented  for  relief  by  injunction.^f'  So  when 
defendant's  interest  in  land  has  been  sold  under  foreclosure, 
and  the  purchaser  has  received  a  writ  of  assistance,  but  de- 
fendant has  again  taken  possession  after  service  of  such  writ, 
he  may  be  restrained  from  continuing  to  occupy  the  premises.^** 

27  Varick  v.  New  York,  4  .Johns.  New   York   can   not  be   permitted 

Ch.,   53;    Manchester  Cotton   Mills  without  due  process  of  law  to  enter 

V.   Town  of   Manchester,   25   Grat.,  upon  the  possession  of  the  plain- 

825.     The     grounds     upon     which  tiff,     and     pull     down     buildings, 

the     jurisdiction     rests     in     such  fences,   etc.,   under  their  right  to 

cases  are  laid  down  by  the  chan-  regulate     highways."       See       also 

chancellor  in  Varick  v.  New  York,  Manko    v.    Borough   of   Chambers- 

4  Johns.  Ch.,  53,  as  follows:    "The  burgh,   10  C.  E.  Green,  168. 

principle    upon   which   the   injunc-  -'*  Skinner's     Company    v.    Irish 

tion  so  modified  is  to  be  upheld  is.  Society,  1  Myl.  &  Cr.,  162. 

that  after  a  claim  of  right  accom-  -'n  Caro  r.  Pensacola  City  Co.,  19 

panied  with  actual    and    constant  Pla.,  766. 

possession    for     twenty-five    years  so  Ten  Eyck  i\  Sjoburg,  68  Iowa, 

and   upwards,    the    corporation    of  625,  27  N.  W.,  785. 


342  INJUNCTIONS.  [chap.  VI. 

§  364.  Fraudulent  conduct  by  defendant.  Fraudulent  con- 
duct upon  the  part  of  the  defendant  whom  it  is  sought  to 
enjoin  has  also  been  recognized  as  an  additional  ground  for 
equitable  relief  by  injunction  in  cases  affecting  the  title  to  or 
possession  of  real  property.  Thus,  where  complainant  by  his 
bill  alleges  ownership  and  title  in  himself  to  the  premises  in 
controversy,  and  that  defendant,  the  former  owner,  has  by 
fraud  obtained  the  title  deeds  and  muniments  of  title  and  has 
instituted  proceedings  to  recover  possession  of  the  premises, 
a  proper  case  for  an  injunction  is  presented.^i  And  where 
a  father  had  made  a  deed  conveying  real  estate  to  his  daugh- 
ter, with  the  understanding  that  it  should  take  effect  upon  his 
death,  and  that  he  should  remain  in  possession  during  his  life- 
time, an  injunction  was  allowed  to  prevent  the  taking  of  pos- 
session under  the  deed,  or  disturbing  the  father  in  his  posses- 
sion during  his  life-time.^- 

§  365.  Tender  of  purchase  money  at  illegal  sale;  injunction 
of  state  court  to  prevent  possession  under  sale  under  judgment 
in  United  States  court.  Where  the  relief  is  sought  for  the  pur- 
pose of  preventing  the  disturbance  of  complainant  in  his  pos- 
session of  real  estate  by  a  purchaser  under  an  illegal  sale  made 
■under  judicial  process,  it  is  not  necessary  that  complainant 
should  first  tender  to  the  purchaser  the  amount  of  his  purchase 
money  as  a  condition  to  obtaining  relief.^^  It  is,  however, 
exceedingly  questionable  whether  an  injunction  from  a  state 
court  can  be  allowed  to  have  the  effect  of  preventing  a  pur- 
chaser of  lands  at  a  sale  under  a  judgment  of  a  United  States 
court  from  receiving  possession  at  the  hands  of  the  United 
States  marshal,  the  bill  being  filed  by  one  claiming  title  to 
the  premises  as  against  the  defendant  in  the  judgment  under 
which  the  sale  was  had.^* 

:'i  Worthy  v.  Tate,  44  Ga.,  152.  •"■*  Paramore  v.  Persons,   57  Ga., 

■•!2  Alsop  /;.  Eckles,  81  111.,  424.         473. 
'■'■■^  Drouet  r.  Lacroix,  28  La.  An., 
126. 


CHAP.  VI.] 


AFFECTING  HEAL  PROPEKTY. 


343 


§  366.  When  defendant  not  enjoined  from  leasing.  When 
defendant  is  in  possession  of  the  property  in  controversy,  under 
a  claim  of  right  or  title  as  against  complainant,  who  also 
asserts  title,  but  there  is  no  privity  of  estate  between  the 
parties,  defendant  will  not  be  enjoined  from  leasing  the  prem- 
ises upon  the  ground  of  preventing  a  cloud  upon  title.^^ 

§366  a.   Receiver's  possession  protected  by  injunction.     A 

receiver  who  is  appointed  to  take  charge  of  real  estate,  pend- 
ing a  litigation  as  to  the  title,  is  entitled  to  an  injunction  to 
protect  his  possession.  And  he  may,  in  such  case,  enjoin  an 
attempt  to  destrain  for  rent  when  the  matter  may  be  heard 
and  determined  in  the  suit  in  which  he  was  appointed  re- 


ceiver 


36 


35  Spofford  V.  Bangor  &  B.  R. 
Co.,  66  Me.,  51.  As  to  the  right  of 
a  claimant  under  the  pre-emption 
laws  of  the  United  States  to  be 
protected   by   injunction   from  be- 


ing dispossessed  of  the  land 
claimed,  see  Colwell  v.  Smith,  1 
Wash.  Ty.  N.  S.,  92. 

30  Marshall  v.  Lockett,    76    Ga., 
289. 


344  INJUNCTIONS,  [chap,  VI. 


m.     Judicial  Sales  under  Execution  against  Third 

Person. 

§  367.     Want  of  title  in  judgment  debtor  not  usually  ground  for  in- 
junction. 

368.  Questions  of  title  should  be  tried  at  law. 

369.  Distinction  between  legal  and  equitable  title. 

370.  Distinction  between  sales  of  personalty  and  realty. 

371.  Relief  allowed  against  sales  of  trust  property. 

§  367,  Want  of  title  in  judgment  debtor  not  usually  ground 
for  injunction.  It  not  infrequently  happens  that  sales  of  real 
estate  are  attempted  under  judicial  process  against  one  who 
has  no  title  to  the  property  levied  upon.  "While  the  cases  ■ 
\  upon  this  subject  are  far  from  reconcilable,  the  clear  weight 
of  authority  is  in  support  of  the  proposition  that,  in  the  ab- 
sence of  fraud  or  gross  injustice  and  irremediable  injury, 
courts  of  equity  will  not  entertain  jurisdiction  in  restraint 
of  judicial  sales  of  real  estate  under  executions  against  third 
parties  having  no  title  to  the  property  sold.  The  rule  as  thus 
stated  is  but  a  corollary  of  the  proposition  that  equity  will 
not  grant  relief  where  ample  redress  may  be  had  at  law,  and 
the  injuries  resulting  from  a  sale  of  one's  property  under  exe- 
cution being  generally  remediable  in  courts  of  law,  such  sales 
will  not  usually  be  enjoined.^    Thus,  a  sale  of  lands  under  exe- 

1  Hall   V.  Davis,   5  J.   J.  Marsh.,  Gatewood  v.  Burns,  99  N.  C,  357, 

290;     Watkins  r.   Logan,  3   Monr.,  6  S,  E.,  635;    Bostic  v.  Young,  110 

21;  Bouldin  i:  Alexander,  7  Monr,  N.  C,  766,  21  S.  E.,  552.     See  also 

425;     Coughron    v.    Swift,    18    111.,  Shalley   r.   Spillman,  19   Fla.,   500. 

414;     Freeman     i:.     Elmendorf,     3  But  see,  contra,  Brummel  v.  Hurt, 

Halst.  Ch.,  475,  affirmed  on  appeal  3   J.   J.   Marsh.,   709;     Downing  v. 

to   the   Court  of  Errors,    lb.,   655;  Mann,   43  Ala.,  266;    McCulloch  v. 

Henderson   v.   Morrnl,  12   Tex.,   1;  Hollingsworth,  27  Ind.,  115;   Bach 

Carlin   v.    Hudson,    lb.,   202;     Wil-  r.    Goodrich,    9    Rob.     (La.),    391: 

son  r.  Hyatt,  4   S.  C,  369;    Whit-  Budd  r.  Long,  13  Fla.,  288;   Scobey 

man  r.  Willis,  51  Tex.,  421;    Same  r.  Walker,  114  Ind.,  254,  15  N.  E., 

r.  Same,  lb..  429;    American  D.  &  674;      Wilhelm    r.     Woodcock,    11 

I.  Co.  r.  Trustees,  35  N.  J.  Eq.,  181;  Ore.,    518;      Bishop    v.    Moorman, 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  345 

cution  will  not  be  enjoined  at  the  instance  of  a  third  person 
claiming  title  who  alleges  no  fraud  and  does  not  show  that  his 
rights  will  be  prejudiced  or  that  gross  or  irreparable  mischief 
will  result  from  allowing  the  sale  to  proceed. - 

§  368.  Questions  of  title  should  be  tried  at  law.  In  suppoi-t 
of  the  rule  as  above  laid  down  it  is  to  be  observed  that  ques- 
tions of  title  are  properly  triable  in  a  legal  rather  than  an 
equitable  forum,  and  no  departure  from  the  rule  will  be  al- 
lowed except  in  cases  of  fraud  or  irreparable  injury.-'  And 
where  a  sheriff  upon  an  execution  against  a  judgment  debtor 
is  proceeding  to  sell  real  estate,  the  title  to  which  is  in  dis- 
pute and  which  is  claimed  by  another  person,  a  court  of  equity 
will  not  enjoin,  there  being  no  special  equities  requiring  a 
departure  from  the  rule  of  leaving  the  parties  to  their  remedy 
at  law.^  Even  where  fraud  is  relied  upon  as  the  founda- 
tion for  the  relief  the  party  complaining  must  show  a  definite 
injury  to  himself  as  the  result  of  the  fraud.  And  the  pur- 
chaser of  lands  is  not  entitled  to  restrain  their  sale  under  a 
judgment  obtained  by  fraud  against  his  grantor  without  show- 
ing affirmatively  that  he  will  be  injured  by  such  sale.-'"' 

§  369.  Distinction  between  legal  and  equitable  title.  In  the 
application  of  the  rule  a  distinction  has  been  drawn  between 
eases  where  the  parties  aggrieved  possess  the  legal,  and  where 

98  Ind.,  1.     In  Bach  v.  Goodrich,  9  the  sale  would  operate  as  a  cloud 

Rob.    (La.),  391,  and  McCuUoch  v.  upon  the  owner's  title  and  would 

Hollingsworth,    27    Ind.,     115,    the  affect    the    value    of    his    property 

doctrine  is  laid  down  that  the  ob-  in    a    manner   not    susceptible     of 

ligation  of  a  grantor  of  real  estate  measurement  or  redress  in  an  ac- 

with  covenants  of  warranty  to  de-  tion  at  law. 

fend  the  title  of  his  grantee,  con-  -  Henderson   *.   Morrill,  12  Tex., 

stitutes    such    an     interest    as     to  1;     Carlin  r.  Hudson,  lb.,  202. 

make  him  a  proper  party  to  enjoin  ••■  Freeman  r.  Elmendorf,  3  Halst. 

a  sale  of  real  estate  to  satisfy  an  Ch.,   475,   affirmed   on   appeal,    lb., 

execution   against  a  third  person.  655;    Wilson  v.  Hyatt,  4  S.  C,  369. 

And  in  Budd  v.  Long,  13  Fla.,  288,  4  Freeman  r.  Elmendorf,  3  Halst. 

it  is  held  that  an  injunction  is  the  Ch.,   475,   affirmed   on   appeal.    lb., 

appropriate  remedy  in  the  class  of  655. 

cases  under  consideration,  because  ^  Marriner  v.  Smith,  27  Cal.,  649. 


346  INJUNCTIONS.  [chap.  VI. 

they  possess  the  equitable  title  to  the  property  about  to  be 
sold.  The  distinction  is  based  upon  the  fact  that  in  the  case 
of  legal  ownership  the  remedy  at  law  is  ample,  but  where  the 
title  which  it  is  sought  to  protect  is  merely  an  equitable  title 
the  courts  of  law  can  not  give  adequate  redress;  hence  equity 
will  entertain  jurisdiction  to  grant  relief  against  the  sale  in 
behalf  of  complainants  having  only  an  equitable  title  to  the 
premises.*'  Thus,  plaintiff  having  an  equitable  title  by  pay- 
ment of  purchase  money  and  taking  possession,  but  not  yet 
having  acquired  the  legal  title  by  conveyance,  may  enjoin  a 
sale  of  the  premises  under  a  subsequent  judgment  against  his 
vendor."^ 

§  370.  Distinction  between  sales  of  personalty  and  realty. 
It  may,  at  first  sight,  appear  difficult  to  reconcile  the  general 
doctrine  as  here  discussed  and  illustrated,  denying  relief  by 
injunction  against  the  sale  of  one's  real  estate  under  execu- 
tion against  a  third  person,  with  the  rule  as  previously  stated, 
permitting  such  relief  for  the  prevention  of  the  sale  of  one's 
personal  property  under  execution  against  another.^  And, 
indeed,  the  authorities  in  sup]5ort  of  the  divergent  rules  thus 
established  in  the  two  classes  of  cases  are  not  wholly  recon- 
cilable. It  is  to  be  noticed,  however,  that  the  courts  in  grant- 
ing preventive  relief  against  the  sale  of  personal  property 
under  execution  against  a  third  person  rest  their  decisions 
largely  upon  the  uncertainty  and  insufficiency  of  the  legal  rem- 
edy for  damages  in  such  cases,  as  well  as  upon  the  necessity  of 
extending  the  relief  for  the  retention  and  preservation  of  the 
property  in  specie.''    While  in  cases  of  the  sale  of  real  property 

e  Orr  v.  Orr,  3  J.  J.  Marsh.,  269,  74;    Hardy   v.    Broaddus,    35    Tex., 

7  Parks  v.  People's  Bank,  97  Mo.,  668 ;    McCreery   v.    Sutherland,    23 

130,  11  S.  W.,  41.  Md.,  471;   Chappell  v.  Cox,  18  Md., 

s  See   the  question   discussed  as  513;    Amis  r.  Myers,  16  How.,  492 

to  sales  of  personalty,  chapter  HI,  Poincy  v.  Burke,  28  La.  An.,  673 

ante,  §  119  et  seq.  Lewis  v.  Daniels,  23  La.  An.,  170 

■■•  See  Wilson  v.  Butler,  3  Munf.,  Deville  r.  Hayes,  23  La.  An.,  550 

559;  Watson  r.  Sutherland,  5  Wal.,  Walker  r.  Hunt,  2  West  Va     491 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  347 

the  possession  is  not  ordinarily  divested  by  a  sale  under  execu- 
tion, and  the  purchaser  is  left  to  the  ordinary  remedies  for 
obtaining  such  possession.  And  the  question  of  title  to  realty 
being  matter  of  record,  full  redress  may  usually  be  had  at  law 
in  resisting  an  action  by  the  purchaser  to  obtain  possession 
after  a  sale  of  real  property  under  an  execution  against  a 
third  person  having  no  title  to  such  property.^" 

§  371.  Relief  allowed  against  sales  of  trust  property.  In 
cases  where  the  property  is  affected  by  a  trust  the  tendency 
of  the  courts  is  toward  a  departure  from  the  rule  of  non-inter- 
ference as  above  stated,  and  to  allow  relief  by  injunction  to 
prevent  a  sale  of  the  trust  estate.  And  equity  may  properly 
enjoin  a  sale  under  execution  of  property  held  by  the  judg- 
ment debtor  in  trust  for  a  third  person,  and  which  has  passed 
by  transfer  from  the  trustee  to  the  beneficiary  and  from  him 
to  plaintiff  by  purchase.^ ^  So  where  a  mother  holds  real  prop- 
erty in  trust  for  herself  and  her  minor  children,  and  a  levy  is 
made  upon  the  property  under  a  judgment  against  the  mother 
alone,  it  is  proper  to  enjoin  a  sale  under  the  execution  until 
the  interest  of  the  various  cestius  que  trustent  may  be  estab- 
lished in  the  premises.^-  So,  too,  where  real  estate  is  held  in 
trust  for  a  married  woman  and  her  children,  and  judgment  is 
obtained  against  the  trustees  for  alleged  advances  to  one  of 
the  cestius  que  trustent,  the  judgment  being  general  and  not 
specifying  the  property  to  be  bound  for  its  payment,  equity 
may  enjoin  a  levy  of  the  execution  upon  the  trust  estate.^ -"^ 
And  the  sale  of  a  leasehold  interest  in  realty,  under  a  judg- 
ment against  the  lessee,  may  be  enjoined  by  the  owner  of  the 
fee  when  the  lessee  holds  title  as  a  naked  trustee,  having  no 
beneficial  interest,  and  this  fact  being  known  to  the  judgment 

McFarland    v.    Dilly,    5    West   Va.,  n  Hollingsworth    v.     Trueblood, 

135;    Baker  v.  Rinehard,    11    West  59  Ind.,  542. 

Va.,  238;     Ford   v.  Rigby,  10  Cal.,  12  simms  r.  Phillips,  51  Ga..  433. 

449.  13  Clinch  v.  Ferril,  48  Ga.,  365. 

10  See  Southerland  r.  Harper,  83 
N.  C,  200. 


348  INJUNCTIONS.  [chap.  VI. 

creditor.! ■*  So  if  the  vendor  of  real  estate  retains  the  h^gal 
title  as  security  for  notes  given  for  the  unpaid  purchase  money, 
his  sale  of  such  notes  is  regarded  as  transferring  the  lien  or 
security  of  the  purchaser,  and  the  interest  or  title  of  the  ven- 
dor in  the  real  estate  is  thereafter  merely  that  of  a  trustee 
under  a  naked  trust.  And  if,  under  such  circumstances,  judg- 
ment is  recovered  against  the  vendor  after  his  sale  of  the 
property,  a  levy  under  execution  upon  such  real  estate  may  be 
enjoined  upon  the  application  of  the  purchaser,  he  having 
received  possession  under  his  contract  of  purchase  and  hav- 
ing ever  since  remained  in  possession. ^'^ 

14  South  Presbyterian  Church  v.         is  Jackson  v.  Snell,  34  Ind.,  241. 
Hintze,  72  Mo.,  363. 


CHAP.  VI.]  AFFECTING    REAL    PROPERTY.  349 


IV.    Cloud  upon  Title. 

§  372.  Foundation  of  the  jurisdiction. 

373.  Test  to  be  applied. 

374.  Judgment  already  satisfied. 

375.  Distinction  as   to   whether  defect  does  or  does  not  appear  of 

record. 

376.  Records  of  United  States  land  office  considered  as  foreign. 

377.  Remedy  at  law  bars  injunction;  general  illustrations  of  the  ju- 

risdiction. 

378.  Negligence  in  examining  title  a  bar  to  relief. 

379.  Sale  of  lands  under  execution  against  former  owner  enjoined. 

380.  Administrator   denied   relief;    jurisdiction  cautiously  exercised 

against  strangers. 

381.  Administrator's  sale,  when  enjoined. 

§  372.  Foundation  of  the  jurisdiction.  The  prevention  of  a 
cloud  upon  title  is  a  salutary  branch  of  the  jurisdiction  of 
equity,  recognized  by  all  the  authorities,  and  founded  upon 
the  clearest  principles  of  right  and  justice.  The  jurisdiction 
by  injunction  to  prevent  a  cloud  upon  title  is  closely  analo- 
gous to  the  well  settled  jurisdiction  of  courts  of  chancery  for 
the  removal  of  cloud  upon  title ;  and  the  reasoning  which  sup- 
ports the  jurisdiction  in  the  latter  case  would  seem  to  apply 
with  equal  if  not  greater  force  m  the  former.  It  seems,  there- 
fore, to  follow  as  a  necessary  consequence  that  if  the  aid  of 
equity  may  be  invoked  to  remove  a  cloud  upon  title  to  realty, 
it  may  with  equal  propriety  be  exerted  to  enjoin  such  illegal 
acts  as  will  necessarily  result  in  a  clouded  title.^     And  it  may 

1  Pettit    i.K    Shepherd,     5     Paige,  28,  61  N.  W.,  77;     Kirwin  v.  Mur- 

493;    Christie  v.  Hale,  46  111.,  117;  phy,  28  C.  C.  A.,  348,  83  Fed.,  27.5. 

Merriman  v.   Polk,   5   Heisk.,  717;  A  contrary  doctrine  was  affirmed 

Irwin    V.    Lewis,     50     Miss.,    363;  in  Armstrong  v.  Sanford,  7  Minn., 

Hinckley  v.   Haines,     69    Me.,   76;  49;     Montgomery     v.     McEwen,    9 

Oakley  v.  Trustees,  6  Paige,   262;  Minn.,  103;    but  these  cases  seem 

Roth  V.  Insley,  86  Cal.,  134,  24  Pac,  to  have  been  overruled  in  Conkey 

853;     Gardner   v.    Terry,    99     Mo.,  v.  Dike,  17  Minn.,  457.     As  to  the 

523,  12  S.  W.,  888,  7  L.  R.  A.,  67;  jurisdiction   of   equity    to   grant   a 

Beaser  v.  City  of  Ashland,  89  Wis.,  perpetual    injunction    for   the   pur- 


350 


INJUNCTIONS. 


[chap.  VI. 


be  asserted  as  a  general  proposition,  that  a  sale  of  lands 
under  execution,  which  would  confer  no  title  upon  the  pur- 
chaser, and  whose  only  effect  would  be  to  cloud  the  title  of 
others,  will  be  enjoined.- 

§  373.  Test  to  be  applied.  It  is  difficult  to  establish  any 
exact  test  which  will  be  applicable  in  all  cases  to  determine 
what  constitutes  such  a  cloud  upon  title  as  to  authorize  a 
court  of  equity  to  interfere  for  its  prevention.  It  has  been 
held,  however,  that  if  the  sale  or  conveyance  which  it  is  sought 
to  restrain  is  such  thct  in  an  action  of  ejectment  brought 
thereunder  the  real  owner  of  the  property  would  be  obliged 
to  offer  evidence  to  defeat  a  recovery,  then  such  a  cloud  would 
be  raised  as  to  warrant  the  interference  of  equity.^  Upon  the 
other  hand,  if  under  the  levy  and  sale  a  purchaser  would  not 
acquire  even  an  apparent  title  to  the  premises,  the  execution 
being  against  one  who  had  no  title,  so  that  the  purchaser  in 
an  action  of  ejectment  could  not  recover  even  upon  his  own 


pose  of  quieting  a  title  which  has 
been  fully  established,  see  Wick- 
liffe  r.  Owl  gs,  17  How.,  47.  And 
see,  ante,  §  248. 

2  Bank  of  U.  S.  v.  Schultz,  2 
Ohio,  471;  Norton  v.  Beaver,  5 
Ohio,  178;  ghristie  v.  Hale,  46  111., 
117;  BennetL  v.  McFadden,  61  111., 
334;  Sharpe  v.  Tatnall,  5  Del.  Ch., 
302;  Vogler  v.  Montgomery,  54 
Mo.,  577;  Uhl  v.  May,  5  Neb.,  157; 
Key  C.  G.  L.  Co.  v.  Munsell,  19 
Iowa,  305;  Pixley  r.  Huggins,  15 
Cal.,  127;  Porter  v.  Pico,  55  Cal., 
165;  Roth  v.  Insley,  86  Cal.,  134, 
24  Pac,  853;  Chase  v.  City  Treas- 
urer, 122  Cal.,  540,  55  Pac,  414; 
White  v.  Espey,  21  Ore.,  328,  28 
Pac,  71;  Dietz  v.  City  of  Neenah, 
91  Wis.,  422,  64  N.  W.,  299,  65  N. 
W.,  500;  McConnaughy  v.  Pen- 
noyer,  43  Fed.,  339.  'And  see  Pet- 
tit  )'.  Shepherd,  5  Paige,  493;  Oak- 


ley V.  Trustees,  6  Paige,  262.  It  is 
not  necessary  that  the  sale  should 
divest  complainant  of  his  title  to 
warrant  equity  in  interfering;  it 
is  sufficient  that  it  simply  operates 
to  cloud  his  title.  And  the  fact 
that  the  levy  was  only  made  upon 
the  "right,  title  and  interest"  of 
complainant  in  the  injunction  suit 
will  not  avail  against  granting  the 
injunction.  Key  C.  G.  L.  Co.  v. 
Munsell,  19  Iowa,  305.  And  a 
court  of  equity,  in  removing  a 
cloud  upon  title  to  real  estate,  may 
enjoin  the  defendant  from  set- 
ting up  or  asserting  his  claim  in 
the  future.  Craft  v.  I.,  D.  &  W.  R. 
Co.,  166  111.,  580,  46  N.  E.,  1132. 

3  Pixley  r.  Huggins,  15  Cal.,  127; 
Lick  r.  Ray,  43  Cal.,  83;  Roth  v. 
Insley,  86  Cal.,  134,  24  Pac,  853; 
Chase  v.  City  Treasurer,  122  Cal., 
540,   55   Pac,  414;     Rea    v.    Long- 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  351 

showing,  and  defendant  in  ejectment  would  not  be  put  to 
proof  to  defeat  the  action,  an  injunction  will  not  lie.-* 

§  374.  Judgment  already  satisfied.  An  attempt  to  enforce 
a  judgment  already  satisfied  may  sometimes  cast  such  a  cloud 
upon  the  title  of  the  judgment  debtor  as  to  warrant  equity 
in  interfering  for  the  protection  of  other  creditors  whose 
claims  are  established  by  judgment.  Thus,  where  a  prior  judg- 
ment creditor  has  received  full  payment  and  satisfaction  of 
his  judgments,  but  still  keeps  them  on  foot  and  attempts  to 
enforce  executions  thereunder  to  the  prejudice  of  a  junior 
creditor,  he  thereby  casts  such  a  cloud  upon  the  title  to  the 
debtor's  estate  as  to  lay  the  foundation  for  an  injunction  in 
behalf  of  the  junior  creditor.^  So  the  owner  of  land  may 
enjoin  its  sale  under  execution  against  his  grantor  upon  a  judg- 
ment which  was  satisfied  before  complainant  purchased  the 
premises.^ 

§  375.  Distinction  as  to  whether  defect  does  or  does  not 
appear  of  record.  In  the  exercise  of  the  jurisdiction  for  the 
prevention  of  cloud  upon  title,  a  distinction  is  drawn  between 
eases  where  the  invalidity  or  illegality  charged  as  the  cloud 
is  shown  by  evidence  dehors  the  record,  and  where  it  appears 
upon  the  face  of  the  proceedings  themselves.  And  while 
in  the  former  case  the  relief  is  freely  granted,  in  the  latter 
courts  of  equity  will  not  interpose.'^  Thus,  where  a  question 
concerning  the  partition  of  lands  has  been  referred  to  arbi- 
tration, if  the  award  for  the  partition  is  invalid  upon  its 
face,  no  such  cloud  will  result  as  to  warrant  equity  in  en- 
joining the  proceedings.^      So    where    an    execution  is  abso- 

street,  54  Ala.,  291;    Gregg  v.  San-  « Whitehill   v.   Fauber,    97    Ind., 

ford,  12  C.  C.  A.,  525,  65  Fed.,  151;  169. 

McConnaughy  v.  Pennoyer,  43  Fed.,  "  Meloy    v.    Dougherty,   16   Wis., 

339.  269;    Hanson  v.  Johnson,  20  Minn., 

4  Shalley  v.  Spillman,  19  Fla.,  194;  Browning  v.  Lavender,  104 
500;    Archbishop  of  San  Francisco  N.  C,  69,  10  S.  E.,  77. 

V.  Shipman,  69  Cal.,  586,  11  Pac,  »  Meloy  v.  Dougherty,  16  Wis., 
343.  269. 

5  Shaw  V.  Dwight,  16  Barb.,  536. 


352  INJUNCTIONS.  [chap.  VI. 

lutely  void,  as  appears  upon  the  face  of  the  record,  a  sale 
thereunder  does  not  constitute  such  a  cloud  upon  the  title 
as  to  warrant  an  injunction.^  So  the  sale  of  real  estate  under 
a  judgment  for  a  delinquent  special  assessment  will  not  be 
enjoined  as  casting  a  cloud  upon  title  upon  the  ground  that 
the  judgment  of  confirmation  was  not  properly  entitled,  since 
such  defect  fully  appears  of  record  upon  the  face  of  the  pro- 
ceedings.^ ^  And  to  justify  the  relief  in  this  class  of  cases,  it 
is  held  that  the  title  of  the  party  complaining  being  shown 
as  it  appears  of  record,  the  cloud  to  be  removed  must  be 
apparently  a  good  title  as  against  that  of  complainant,  though 
really  defective  by  reason  of  something  not  appearing  of 
record.  "Where,  therefore,  the  cloud  which  it  is  sought  to 
remove  can  only  be  shown  to  be  a  good  title  by  leaving  that 
of  complainant  out  of  the  question,  an  injunction  will  be 
refused.^  ^  Nor  will  a  sale  of  real  estate  under  execution  be 
enjoined  upon  the  ground  that  the  property  is  not  subject  to 
execution.^-  ^q(J  gn  injunction  will  not  lie  to  prevent  a 
sale  of  land  under  execution  at  the  suit  of  one  who  has  no 
further  interest  in  the  premises.^^  But  the  owner  of  real 
estate  may  enjoin  the  recording  of  an  instrument  which  is 
not  entitled  to  record  and  which  would  cast  a  cloud  upon 
his  title.i* 

§376.  Records  of  United  States  land  office  considered  as 
forei^.  But  while  the  general  proposition  is  unquestioned 
that  equity  will  not  interfere  to  prevent  a  cloud  upon  title 
when  the  invalidity  or  illegality  relied  on  appears  of  record, 
and  so  can  not  deceive  or  mislead,^^  the  records  within  the 

"  Hanson   v.   Johnson,   20   Minn.,  12  Bristol   r.   Hal'yburton,  93   N. 

194.  C,  384. 

'"  Craft     r.     Kochersperger,    173  13  Small   r.  Somerville,  58  Iowa. 

111.,  C17,  50  N.  E.,  1061.  362.  12  N.  W.,  315. 

"Moore  v.   Cord,   14   Wis.,   213:  1^  Walter    r.    Hartwig,    106    Intl., 

Gamble  v.  Loop,  14  Wis.,  465.    See  123,  6  N.  E.,  5. 

also  Lehman  v.  Roberts,  86  N.  Y..  '"■  Heussler   r.    Thomas,     4     Mo. 

232.  App.,  463. 


CHAP.  VI. J         AFFECTIXU  REAL  PROPERTY.  353 

meaning  of  the  rule  are  the  public  records  of  the  county  or 
state  within  which  the  lands  are  situated,  and  of  which  pur- 
chasers are  bound  to  take  notice,  and  the  records  of  a  United 
States  land  office  are  treated  as  foreign  records  within  the 
meaning-  of  the  rule.  Although,  therefore,  the  invalidity  relied 
upon  appears  of  record  in  a  United  States  land  office,  but  not 
of  record  in  the  county  where  the  land  is  situated,  and  the 
lien  or  interest  claimed  by  defendant  is  apparently  good  as 
against  plaintiffs'  title  and  hence  constitutes  a  cloud  upon 
their  title,  an  injunction  may  be  allowed.^*' 

§  377.  Remedy  at  law  bars  injunction;  general  illustrations 
of  the  jurisdiction.  Since  the  interference  for  the  prevention 
of  a  cloud  upon  title  grows  out  of  the  inadequacy  of  the 
remedy  at  law,  it  follows  that  where  special  legal  remedies  are 
provided  sufficiently  efficacious  to  meet  the  exigencies  of  the 
case  and  to  prevent  the  injury  complained  of,  no  injunction 
will  be  allowed,  and  the  parties  will  be  left  to  pursue  the 
remedy  provided  at  law.  Thus,  a  sheriff's  sale  of  real  estate 
under  execution  will  not  be  enjoined  on  the  ground  that  it 
would  pass  no  title  and  might  impair  the  rights  of  the  real 
owner  by  clouding  his  title,  where  under  the  peculiar  judicial 
system  of  the  state  ample  remedy  may  be  had  at  law.i'^    And 

i«  Gile  V.  Hallock,  33  Wis.,  523.  no  interest,  would  cast  a  hurtful 
17  Drake  v.  Jones,  27  Mo.,  428;  doubt  on  the  plaintiff's  title, 
Kuhn  V.  McNeil,  47  Mo.,  389;  Arch-  which  he  could  only  remove  by 
bishop  of  San  Francisco  v.  Ship-  evidence  in  pais,  and  the  pur- 
man,  69  Cal.,  586,  11  Pac,  343.  chaser  could  stand  by  indefinitely 
Drake  v.  Jones,  27  Mo.,  428,  was  and  refuse  to  litigate  his  right  un- 
an  application  for  an  injunction  til  the  evidence  to  repel  it  might 
to  restrain  a  sheriff's  sale  of  real  be  lost  and  the  plaintiff  less  able 
estate  under  an  execution  on  the  to  contest  it,  and  in  the  mean- 
ground  that  it  would  pass  no  title  time  the  true  owner  be  unable  to 
and  might  impair  the  rights  of  the  sell  and  afraid  to  improve,  and 
real  owner  by  clouding  his  title,  thus  be  denied  the  full  dominion 
The  relief  was  denied,  the  court,  over  his  property,  then  the  exer- 
Richardson,  J.,  saying:  "If  the  cise  of  the  power  of  the  court  by 
effects  of  a  sale  under  the  defend-  the  writ  of  injunction  would  be 
ant's  execution,  whilst  it  passed  properly  invoked  as  a  means  of 
22 


354  INJUNCTIONS.  [chap.  VI. 

where  a  bill  is  filed  against  a  party  in  possession  of  lands 
under  tax  deeds  to  have  such  deeds  declared  void  as  a  cloud 
upon  the  title,  and  praying  an  injunction  to  restrain  the  com- 
mission of  waste,  complainant  not  being  in  possession,  and 
not  having-  established  his  title  to  the  premises  at  law,  and 
showing  no  privity  of  estate  and  no  action  of  ejectment  pend- 
ing to  try  the  title,  the  bill  will  be  dismissed  for  want  of 
equity.^  ^  A  bona  fide  purchaser  of  real  estate  for  a  valuable 
consideration  may  restrain  a  sale  of  the  property  under  exe- 
cution when  he  has  purchased  after  the  rendition  of  the  judg- 
ment but  before  the  execution  was  delivered  to  the  sheriff,  the 
judgment  not  being  a  lien  upon  the  property,  since  such  sale 
would  operate  as  a  cloud  upon  his  title.^^  And  a  subsequent 
bona  fide  purchaser  may  enjoin  a  sale  of  realty  under  a  judg- 
ment, when  the  lien  created  by  statute  in  favor  of  the  judg- 
ment creditor  has  expired  by  lapse  of  time  without  a  sale 
being  had.-*^  And  where  judgment  creditors  have  stipulated 
in  writing  that  they  will  not  enforce  their  lien  against  cer- 
tain real  estate  of  the  defendant,  it  has  been  held  that  subse- 
quent attempts  to  enforce  the  lien  against  the  property  in 
violation  of  the  agreement  might  be  enjoined.-^     But  one  who 

preventing  injury  and  of  precau-  §  62.)  *  *  *  Several  of  the  au- 
tionary  justice.  But  our  law  has  thorities  cited  from  other  states 
disarmed  a  person  having  no  title  as  to  the  power  to  enjoin  in  cases 
of  the  power  by  false  clamor  to  like  the  present  one,  seem  to  be 
injure  the  title  of  another  in  that  in  point;  but  our  system  is  differ- 
way.  In  the  first  place  provision  ent  from  theirs,  and  we  think  that 
is  made  with  minute  particularity  sound  policy  requires  us  to  deny 
for  perpetuating  testimony;  and  the  relief  the  plaintiff  seeks  in  the 
then  again,  if  the  plaintiff  is  out  form  and  at  the  time  it  was 
of  possession  he  may  immediately  asked."  And  a  similar  doctrine  was 
bring  his  ejectment;  but  if  he  is  held  in  Kuhn  v.  McNeil,  47  Mo., 
in    possession,    and    wishes    to    si-  389. 

lence  an  adverse  claimant,  he  may  is  Blackwood    v.    Van    Vleet,    11 

file  a  petition  and  compel  him  to  Mich.,  252. 

bring  an  action  to  try  the  title,  or  lo  Martin  r.  Hewitt,  44  Ala.,  418. 

be    forever   barred    from   claiming  20  Riggin  v.  Mulligan,  4  Gilm..  50. 

any  right  or  title    adverse   to  the  21  Reily  v.   Miami   Co.,    5    Ohio, 

petitioner.      (R.    C.    1855,    p.    1241,  333. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  355 

holds  a  prior  lien  upon  real  estate  will  not  be  allowed  to 
r^njoin  a  subsequent  judgment  creditor  from  enforcing  his 
judgment  by  execution,  since  a  sale  under  such  execution 
would  not  impair  or  defeat  the  prior  lien,  but  would  leave  it 
at  law  and  in  equity  as  if  such  sale  had  never  taken  place. 22 
Where  land  has  been  improperly  assessed  for  benefits  arising 
from  the  opening  of  streets,  the  commissioners  having  pro- 
ceeded irregularly  and  illegally  in  condemning  the  property, 
a  court  of  equity  may  interpose  by  injunction  for  the  purpose 
of  preventing  a  cloud  upon  title,  such  a  case  being  properly 
distinguishable  from  a  sale  of  personal  property  where  ample 
remedy  may  be  had  at  law.^s  But  an  injunction  will  not  be 
granted  to  restrain  the  issuing  of  a  patent  for  lands  where 
such  patent  can  not  by  any  possibility  cast  a  cloud  upon  com- 
plainant's title,  the  lands  in  question  being  tide  lands  and  not 
patentable,  although  the  patent  if  issued  would  be  invalid  and 
would  require  evidence  dehors  the  record  to  establish  its 
invalidity.2^ 

§  378.  Negligence  in  examining-  title  a  bar  to  relief.  Not- 
withstanding the  somewhat  liberal  tendency  of  courts  of  equity 
to  the  exercise  of  their  extraordinary  jurisdiction  for  the 
prevention  of  a  cloud  upon  title,  the  relief  will  not  be  extended 
in  behalf  of  one  whose  own  carelessness  or  want  of  diligence  in 
the  examination  of  the  title  before  purchasing  has  prevented 
his  acquiring  knowledge  of  liens  which  he  afterwards  seeks 
to  remove.  Equity  will  not,  therefore,  enjoin  a  sale  of  real 
estate  under  execution  upon  a  judgment  at  law,  upon  the 
ground  that  complainant  had  purchased  the  property  and  made 
valuable  improvements  thereon  before  discovering  that  it  was 
subject  to  the  lien  of  the  judgment  in  question,  it  being  a 
sufficient  ground  for  withholding  relief  in  such  case  that  equity 
will  not  assist  one  whose  condition  is  attributable  to  his  fail- 
ure to  exercise  reasonable  diligenee.^s 

22  Union  Bank  v.  Poultney,  8  24  Taylor  v.  Underbill,  40  Cal. 
Gill  &  J..  324.  471. 

s-".  Leslie  v.  St.  Louis.  47  Mo..  474.         2.-^  Dillett    r.   Kemble.    10    C.    Ei 


356  INJUNCTIONS.  [chap.  VI. 

§  379.  Sale  of  lands  under  execution  against  former  owner 
enjoined.  A  vendee  of  lands  who  is  in  possession  under  a 
bond  for  title  and  who  claims  the  legal  title  may  enjoin  a 
judgment  creditor  of  his  vendor  from  selling  the  lands  under 
execution  against  the  vendor,  the  bond  having  been  recorded 
before  the  judgment,  the  relief  being  granted  in  such  case 
upon  the  principle  of  quia  timet,  since  equity  will  not  com- 
pel the  vendee  to  wait  until  such  threatened  sale  is  com- 
pleted and  then  to  rely  upon  the  strength  of  his  title  in  a 
proceeding  at  law.-^  And  since  possession  of  real  property 
is  considered  as  notice  of  the  title  and  interest  of  the  pos- 
sessor, it  is  held  that  where  one  purchases  land  and  is  in  its 
exclusive  possession,  but  has  not  yet  received  a  conveyance 
from  his  grantor  in  whom  the  legal  title  yet  stands,  he  may 
restrain  a  sale  of  the  land  under  execution  against  his  ven- 
dor.-'^ So  a  purchaser  by  parol,  who  has  paid  the  purchase 
money  and  been  in  possession  until  his  title  has  matured  by 
prescription,  has  been  allowed  to  enjoin  a  sale  under  execu- 
tion upon  a  judgment  recovered  against  his  vendor  after  such, 
sale  and  possession.-^  And  one  who  purchases  and  takes  pos- 
session of  real  estate,  but  whose  conveyance  is  not  recorded 
until  after  the  execution  of  a  deed  of  trust  by  his  grantor 
of  the  same  premises,  may  enjoin  a  sale  under  such  deed,  the 
trustee  and  beneficiary  having  full  knowledge  of  the  prior 
conveyance  and  jjossession.^^  But  a  plaintiff  in  possession  and 
asserting  a  legal  title  to  real  estate  has  been  refused  an  in- 
junction to  prevent  its  sale  under  a  judgment  recovered  against 
the  grantor  subseqnoDt  to  his  conveyance  to  plaintiff.-''*^    xVud  a 

Green,  66.  But  see  S.  C,  8  C.  E.  the  bond  under  which  plaintiff 
Green,  58,  where,  upon  the  facts  claimed  title  had  not  been  re- 
shown,  the  case  was  regarded  as  a  corded. 

proper  one  to   continue  the  inter-         -'•  Uhl  r.  May,  5  Neb.,  157. 
locutory  injunction  until  the  final         ^s  Niles  r.  Davis,  60  Miss.,  750. 
hearing.  -'•'  Martin  v.  Jones,  72  Mo.,  23. 

-« Merriman    v.    Polk,    5    Heisk.,         -"  Sheldon   r.    Stokes,     34     N.   J, 

717.     But  In  Moore    r.    Hallum.    1  Eq.,  87. 
Lea,  .^i11,   rclii'f   was   r(>fused   when 


CHAP.  VI.]  AFFECTING    REAL    PROFERTY.  357 

purchaser  can  not  enjoin  the  execution  of  a  sheriff's  deed  upon 
a  sale  under  a  judgment  recovered  before  his  purchase,  to 
which  judgment  he  was  not  a  party .^^  But  an  equitable  lien 
or  charge  upon  real  estate,  which  is  prior  to  the  lien  of  a 
judgment  upon  the  same  premises,  may  be  protected  by  in- 
junction against  a  sale  of  the  property  under  execution  until 
the  rights  of  all  parties  may  be  determined.^^  ^^d  the  pur- 
chaser of  a  portion  of  a  tract  of  land,  which  is  subject  to  the 
lien  of  a  judgment  against  his  grantor,  may  restrain  a  sale 
under  execution  of  such  portion  until  the  remainder  of  the 
land  owned  by  the  grantor  and  which  is  sufficient  to  satisfy 
the  execution  is  first  sold.^'  So  a  sale  of  lands  under  a  judg- 
ment against  a  former  owner  which  was  never  a  lien  upon 
the  premises  may  be  restrained,  since  the  sheriff's  certifi- 
cate of  such  sale,  or  the  conveyance  thereunder,  would  consti- 
tute a  cloud  upon  the  owner's  title.^'^  And  a  bona  fide  pur- 
chaser for  value  of  real  property  may  enjoin  a  sheriff's  sale 
of  the  premises  under  an  attachment  issued  subsequent  to  his 
purchase  and  without  his  knowledge  at  that  time.-^^  And 
a  wife  in  possession  of  real  estate  under  a  conveyance  from 
her  husband  may  enjoin  a  sale  of  such  land  under  execution 
issued  upon  a  judgment  rendered  against  the  husband.-^" 

§  380.  Administrator  denied  relief ;  jurisdiction  cautiously 
exercised  against  strangers.  While  the  jurisdiction  of  equity 
to  enjoin  a  sale  which  is  likely  to  result  in  clouding  plain- 
tiff's title  is  thus  shown  to  be  well  established,  to  bring  a  case 
within  the  rule  the  party  aggrieved  must  actually  have  a  title 
which  is  embarrassed  or  about  to  become  so  by  the  threatened 
eloud."^^     And  when  the  plaintiff'  fails  to  show  any  title,  but 

31  Colby  V.  Brown,  10  Neb.,  413,  436.  See  also  Wilhelm  v.  Wood- 
6  N.  W.,  474.  cock,  11  Ore.,  518,  5  Pac,  202. 

32  Monticello  Hydraulic  Co.  r.  35  Groves  v.  Webber,  72  111.,  606. 
Loughry,  72  Ind.,  562.  36  Einstein  v.  Bank,  137  Cal.,  47, 

33  Edwards  v.  Applegate,  70  Ind.,  69  Pac,  616. 

325.  3'  Robinson  ?;.  Joplin,  54  Ala.,  70; 

34  Goodell    V.    Blumer,    41    Wis.,     Benner  v.  Kendall,  21  Fla.,  584. 


358  INJUNCTIONS.  [chap.  VI. 

at  the  most  only  a  right  to  sell  the  lands  for  purposes  of 
administration,  plaintiff  being  an  administrator  in  charge  of 
the  estate  to  which  the  lands  pertain,  equity  will  not  inter- 
fere.^^ And  the  courts  are  also  cautious  in  granting  the  relief 
where  it  would  work  an  injury  to  strangers.^^ 

§  381.  Administrator's  sale,  when  enjoined.  When  an  ad- 
ministrator is  about  to  sell  real  estate  as  that  of  his  intestate, 
which  had  been  sold  by  the  latter  in  his  life-time,  he  may  be 
enjoined  from  selling  upon  the  ground  of  preventing  a  cloud 
upon  title,  the  relief  being  extended  upon  the  principle  of  quia 

38  Robinson  v.  Joplin,  54  Ala.,  70         ^o  Gerry  v.  Stimson,  60  Me.,  186. 

39  Goldstein  v.  Kelly,  51  Cal.,  301. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  359 


V.  Collection    of    Purchase    Money    on    Failure    of 

Title. 

§  382.     Unsettled  state  of  authorities. 

383.  Vendor's  fraud  ground  for  relief;  effect  of  laches. 

384.  Purchaser  in  possession  with  warranty  not  allowed  to  enjoin 

collection  of  purchase  money. 

385.  Defense  should  be  urged  in  suit  for  purchase  money. 

386.  Knowledge  of  defect  in  title  by  vendor. 

387.  Injunction  allowed  when  possession  not  given  to  purchaser. 

388.  Outstanding  incumbrances;   covenants  of  quiet  enjoyment. 

389.  Pendency  of  action  of  ejectment. 

390.  Injunction  allowed   when  no   conveyance   given. 

391.  Recovery  barred  by  statute  of  limitations. 

392.  Sales  of  hazard. 

393.  Covenant  not  to  withhold  payment  for  want  of  conveyance. 

394.  False  representations  of  vendor  as  to  quantity;  same  as  to  use 

of  water. 

395.  Conflicting  decisions. 

396.  Cases  where  injunction  allowed  because  of  defective  title. 

397.  Entire  failure  or  want  of  title. 

398.  The    doctrine   in   Indiana. 

399.  Effect  of  garnishee  proceedings  against  purchaser. 

400.  Vendor's  insolvency  ground  for  relief. 

401.  Judicial  sales. 

402.  Violation  of  vendor's  agreement. 

403.  Vendor's  failure  to  procure  outstanding  title. 

404.  Injunction   allowed  when  legal  remedy  inoperative. 

405.  Duty  of  vendor  seeking  dissolution. 

406.  Injunction  rarely  perpetuated. 

407.  Purchaser  with  knowledge  of  defect  can  not  enjoin. 

408.  Rescission  of  contract  by  purchaser. 

409.  Effect  of   special  stipulations   as   to  payment. 

410.  Difficulty  in  obtaining  title  resulting  from  purchaser's  own  neg- 

ligence. 

411.  Set-off;    recoupment;    unpaid  taxes. 

412.  Diligence    required    in    remedy    at   law. 

413.  Damages  on  dissolution. 

§  382.  Unsettled  state  of  authorities.  Upon  no  branch  of 
the  jurisdiction  of  equity  by  injunction,  save  that  in  restraint 
of  taxation,  are  the  authorities  more  divergent  and  irrecon- 
cilable than   in  eases  where  the  relief  has  been  invoked  to 


360  INJUNCTIONS.  [chap.  VI. 

restrain  the  collection  of  unpaid  purchase  money  of  real  estate 
because  of  failure  of  title.  While,  upon  the  one  hand,  courts 
of  the  highest  authority  have  denied  the  relief  in  cases  where 
the  grounds  relied  upon  might  have  been  urged  in  defense  of 
an  action  at  law  for  the  purchase  money,  and  in  cases  where 
the  parties  complaining  were  in  possession  under  cove- 
nants of  warranty  have  held  the  proper  remedy  to  be 
at  law  upon  the  covenants  contained  in  the  deed,  courts  of 
equal  authority  and  respectability  have,  upon  the  other  hand, 
contended  strenuously  in  similar  eases  for  the  exercise  of  the 
jurisdiction  in  equit}^  to  restrain  the  collection  of  the  pur- 
chase money.  In  this  unsettled  state  of  the  authorities  it 
is  exceedingly  difficult,  if  not  impossible,  by  any  process  of 
generalization,  to  deduce  from  the  decided  eases  principles  of 
general  application  which  shall  serve  as  rules  for  the  guidance 
of  courts  and  practitioners.  The  most  that  can  be  attempted 
is  to  group  together  the  adjudications  both  for  and  against  the 
exercise  of  the  jurisdiction,  together  Avith  the  reasoning  upon 
which  the  decisions  are  based. 

§383.  Vendor's  fraud  ground  for  relief;  effect  of  laches. 
It  will  be  found  upon  investigation  that  many,  though  by  no 
means  all  of  the  decisions  in  support  of  the  jurisdiction  in 
restraint  of  the  collection  of  purchase  money,  rest  upon  the 
ground  of  fraudulent  or  deceitful  conduct  upon  the  part  of  the 
vendor.  The  relation  of  vendor  and  vendee  of  real  property 
being  considered  a  confidential  relation,  the  suppression  by 
the  vendor  of  a  knowledge  of  fatal  defects  in  the  title  of 
the  property  conveyed  constitutes  such  fraud  as  will  author- 
ize the  interference  of  equity  to  prevent  the  collection  of  the 
purchiisc  money,  notwithstanding  the  remedy  at  law  for  breach 
of  covenants  of  title,  if  the  vendor  be  insolvent  so  that  a  judg- 
ment against  him  would  be  worthless.'  Accordingly  it  has 
been  held  where  the  vendor  had  disguised   from  the  vendee 

1  Ingram  v.  Morgan,  4  Humph.,  mick,  6  Fla.,  368;  Reed  v.  Tioga 
66.      And     see     Yonge     r.     McCor-     Manufacturing  Co.,  66  Ind.,  21. 


CHAP.  VJ.]  AFFECTING    REAL   PIIOPEKTY.  361 

the  fact  that  his  only  title  was  a  bond  for  a  conveyance  from 
a  person  since  deceased,  that  a  note  for  an  unpaid  balance  of 
purchase  money  might  be  enjoined  even  in  the  hands  of  a 
third  person,  who,  however,  had  not  received  it  in  due  course 
of  trade,  but  had  taken  it  in  payment  of  a  pre-existing  indebt- 
edness, and  without  indorsement.-  So  where  fraud  is  prac- 
ticed by  the  vendor  against  thfe  purchaser  in  concealing 
from  the  latter  certain  tax  sales,  which  are  an  incumbrance 
upon  the  land  sold,  although  the  vendee  may  have  lost  his  right 
to  rescind  the  contract  by  reason  of  his  laches  after  dis- 
covering the  fraud,  he  may  still  be  protected  by  injunction 
against  the  collection  of  the  residue  of  the  unpaid  purchase 
money  until  a  good  title  can  be  made  to  the  premises.-^  Where, 
however,  the  purchaser  has  been  guilty  of  unreasonable  delay 
and  laches  in  asserting  his  right  to  relief  upon  the  ground 
of  fraudulent  representations  on  the  part  of  the  vendor,  equity 
will  refuse  to  interfere  by  injunction  with  a  judgment  for 
purchase  money.  Thus,  when  the  purchaser  takes  possession 
of  the  land,  remains  in  possession  and  cultivates  it  for  a  long- 
period  of  years,  and  permits  judgment  to  be  taken  against  him 
for  part  of  the  unpaid  purchase  money,  he  can  not,  after  the 
lapse  of  many  years,  enjoin  a  sale  of  the  land  in  satisfaction  of 
the  judgment  because  of  deceitful  representations  by  the  ven-  - 
dor  as  to  its  value  and  capability  of  cultivation,  being  estopped 
in  such  case  by  his  own  laches  from  relief  in  equity.* 

§  384.  Purchaser  in  possession,  with  warranty  not  allowed 
to  enjoin  collection  of  purchase  money.  Where  the  purchaser 
of  land  is  in  actual  possession  under  covenants  of  warranty, 
the  better  doctrine  seems  to  be  that  he  is  not  entitled  to  an 
injunction  against  the  collection  of  purchase  money  on  the 
ground  of  failure  of  consideration  resulting  from  want  of  title. 

-  Ingram  i7.  Morgan,  4  Humph.,  3  Houston  v.  Hurley's  Adm'rs,  2 

66.      And     see     Yonge    v.     McCor-  Del.  Ch.,  247. 

mick,  6  Fla.,  368;    Clarke  v.  Hard-  4  Hambrick  v.   Dickey,    48    Ga., 

grove,  7  Grat.,  399.  578. 


362 


INJUNCTIONS- 


[CHAP.  VI. 


Possession  having  been  taken  under  the  deed,  and  there  being 
no  eviction  at  law  under  a  paramount  title,  the  remedy  must 
be  had  at  law  upon  the  covenants  in  the  deed  in  the  absence 
of  fraudulent  and  wilful  misrepresentations  as  to  vendor's 
title.  In  such  cases  eviction  at  law  is  regarded  an  as  in- 
dispensable part  of  the  purchaser's  claim  to  relief  in  equity, 
and  he  being  still  in  possession  under  covenants  of  warranty, 
no  injunction  should  be  allowed.^  And  in  no  event  will  mere 
general  allegations  of  failure  of  title  or  of  defective  title  war- 
rant a  court  of  equity  in  enjoining  a  judgment  for  purchase 
money.^     So  the  i^urchaser,  while  in  undisturbed  possession, 

5  Bumpus  V.  Platner,  1  Johns,  bound  to  defend  their  title  at 
Ch.,  213;  Abbott  v.  Allen,  2  Johns,  law;  and  7ion  constat,  that  he  is 
Ch.,  519;    Patton  V.  Taylor,  7  How.,     not   able    and     willing    to    do     it. 


133;  Gayle  v.  Fattle,  14  Md.,  69; 
Beale  v.  Seiveley,  8  Leigh,  658; 
Wilkins  v.  Hogue,  2  Jones  Eq.,  479; 


There  was  a  case  under  Lord  Not- 
tingham (2  Ch.  Cas.,  19,  Anon.), 
in   which   the  purchaser    was    re- 


Elliott  V.   Thompson,     4     Humph.,     lieved    from    the    payment   of    the 


99;     Senter  v.   Hill,  5   Sneed,  505; 
Truly    V.    Wanzer,     5     How.,     141; 


purchase     money;      but    he     had 
already  lost  the  land,  by  eviction, 


Merriman    v.    Norman,    9    Heisk.,  under  a   better  title.     If  the  title 

269;    Harding,  Ex'r,  v.  Commercial  fails,    in    this    case,    the    plaintiffs 

Loan    Co.,    84    111.,   251;     Allen     v.  can    resort     to     the    covenants    in 

Thornton,    51    Ga.,    594;    Swain   v.  their    deeds    for    their    indemnity. 


Burnley,   1  Mo.    (2d  edition),  286. 
In   Bumpus   v.   Platner,    1    Johns. 


I   consider   an  eviction  at  law  an 
indispensable   part    of    the   plain- 


Ch.,  213,  an  injunction  was  sought  tiff's  claim  to  relief  here,  on   tha 

against  proceedings  under  a  bond  mere  ground  of  failure  of  consid- 

and   mortgage   given  for   purchase  eration."     But  see,  contra,  Clarke 

money,  on  the  ground    of    failure  v.  Hardgrove,  7  Grat.,  399;    Koger 

of  consideration,  consisting  in  do-  v.  Kane,  5  Leigh,  606;    Bartlett  v. 

fective    title,   the    complainant   be-  Loudon,  7  J.  J.  Marsh.,  641;  Yonge 
ing  in  undisturbed  possession  un- 
der  covenants   of   warranty.      Tho 

relief   was   denied,  Kent,   Chancel-  v.  Argyle's  Ex'r,  5  Leigh,  460;  Bul- 

lor,  saying:     "I  apprehend  it  may  litt's   Ex'rs   v.    Songster's   Adm'rs, 

be  safely  said  that  there  is  no  case  3  Munf.,  55;     Dorsey  v.  Hobbs,  10 

of    relief    on     this     ground,    when  Md.,  412;     Buchanan  v.  Lorman,  3 


r.    McCormick,    6    Fla.,   368;     Gay 
V.    Hancock,    1    Rand.,    72;     Miller 


possession  has  passed  and  contin- 
ued, without  any  eviction  at  law. 


Gill,  51. 

fi  French  v.  Howard,  8  Bibb,  301; 


under  a  paramount  title.     Platner     Kinports  v.  Rawson,  29  West  Va., 
conveyrd   to   the   plaintiffs,  with  a     487,  2  S.  E.,  85. 
covenant  of   warranty,  and    he    is 


CHAP.  VI.]         AFFECTING  KEAL  PROPERTY.  363 

can  not  maintain  a  bill  to  enjoin  a  sale  of  the  lands  under  a 
mortgage  given  to  secure  the  unpaid  purchase  money  upon 
the  ground  that  he  acquired  no  title  by  his  purchased  Nor  is 
the  purchaser  of  lands,  who  is  in  possession,  entitled  to  relief 
by  injunction  against  the  enforcement  of  judgments  for  the 
unpaid  purchase  money  because  of  judgments  against  the 
vendor  which  may  prevent  him  from  making  a  good  title,  when 
only  a  remote  possibility  is  shown  that  the  purchaser  will 
ever  be  disturbed  in  his  possession.^  And  to  warrant  an  injunc- 
tion against  the  enforcement  of  a  judgment  for  unpaid  pur- 
chase money,  it  is  not  sufficient  to  allege  a  failure  of  title  to 
the  premises  conveyed,  since  that  might  have  been  urged  in 
defense  of  the  action  in  which  judgment  was  recovered  for 
such  purchase  money,  or  the  purchaser  might  have  a  legal 
remedy  upon  the  covenants  for  a  good  title  given  by  the  ven- 
dor.9 

§  385.      Defense  should  be  urged  in  suit  for  purchase  money. 

It  is  also  held  that  equity  will  not  interfere  by  injunction 
with  the  enforcement  of  a  decree  for  unpaid  purchase  money 
of  real  estate,  when  no  equity  is  alleged  as  a  groiind  for  the 
desired  relief  which  was  not  or  should  not  have  been  urged 
in  the  action  resulting  in  such  decree. ^^  And  when  the  pur- 
chaser has  an  equitable  defense  to  an  action  for  the  foreclosure 
of  the  notes  and  mortgage  given  for  the  unpaid  purchase 
money,  such  defense  growing  out  of  the  fact  that  the  land  had 
been  incumbered  previous  to  his  purchase,  but  neglects  to 
avail  himself  of  such  defense  in  that  action,  he  can  not  upon 
that  ground  enjoin  the  enforcement  of  the  judgment  for  unpaid 
purchase  money.^^  So  when  the  purchaser  relies  upon  a 
breach  of  warranty  in  defense  of  an  action  for  the  recovery 

7  Cartright  v.    Briggs,     41     Ind.,  »  Allen  v.  Thornton,  51  Ga.,  594. 
184.  "  Moore  v.  Hill,  59  Ga.,  760. 

8  Collins  V.  Clayton,  53  Ga.,  649;  n  Ricker  v.  Pratt,  48  Ind.,  73. 
Wamsley   v.    Stalnaker,     24     Wfist 

Va.  214. 


364  INJUNCTIONS.  [chap.  VI. 

of  purchase  money,  but  is  defeated  in  the  action  and  judg- 
ment is  recovered  against  him,  he  can  not  enjoin  such  judg- 
ment because  of  another  breach  of  warranty  of  which  he  might 
by  the  use  of  due  diligence  have  availed  himself  upon  the  for- 
mer hearing.i2 

§  386.  Knowledge  of  defect  in  title  by  vendor.  To  warrant 
equity  in  relieving  a  vendee  in  possession  under  covenants 
of  warranty  by  enjoining  the  collection  of  purchase  money  on 
the  ground  of  defective  title,  it  must  clearly  appear  that  the 
vendor  knew  of  the  defect  in  the  title  Avhich  the  purchaser 
had  no  means  of  discovering,  and  that  he  fraudulently  sup- 
pressed this  knowledge.  Where  this  does  not  appear  and  no 
suit  is  either  prosecuted  or  threatened  against  the  vendee  for 
the  property  in  question,  no  injunction  will  be  allowed.^ ^  In 
conformity  with  this  principle  it  is  held  that  the  fears  and 
apprehensions  of  the  vendee  that  his  title  may  prove  defec- 
tive, will  in  no  case  warrant  the  interference  of  equity  where 
he  is  still  in  undisturbed  possession  of  the  property.'^  And 
where  the  alleged  defects  do  not  amount  to  a  total  failure  of 
consideration,  and  there  has  been  no  disturbance  or  eviction, 
and  no  suit  brought  by  an  adverse  claimant,  relief  by  injunc- 
tion will  be  withheld.^  ^ 

§  387.  Injunction  allowed  when  possession  not  given  to 
purchaser.  Where  the  purchaser  of  land  has  never  been 
placed  in  j)()ssession  there  seems  to  be  stronger  reason  for 
allowing  relief  in  equity  against  enforced  payment  of  the  pur- 
chase money.^"  Thus,  an  injunction  has  been  allowed  against 
a  judgment  on  a  bond  for  purchase  money  where  possession 
of   the   property   was   not    given    at  the   time   stipulated,    and 

'-'  Desvergers  v.  Willis,    58    Ga.,  i^.  Hile  v.  Davison,  .5  C.  E.  Green, 

388.  228. 

i^'  Beale  v.  Seiveley,  8  Leigh,  658.  i"  Hilleary  v.  Crow,  1  Har.  &  J., 

M  Truly  v.  Wanzer,  5  How.,  141.  542;   Nelson  v.  Owen,  3   Ired.  Eq., 

See  also  Cantrell  c.  Cobb,  43  Ga.,  175. 

193. 


CHAr.  YI.]         AFFECTING  REAL  PROPERTY.  365 

where  no  conveyance  had  been  made  to  the  vendee.  Under 
such  circumstances,  the  vendee  having  received  no  conveyance 
is  deprived  of  the  legal  remedy  which  he  might  have  enforced 
upon  the  covenants  of  a  deed  had  one  been  given.^^  So  a  suit 
for  purchase  money  has  been  enjoined  where  the  land  w^as  in 
the  adverse  possession  of  a  third  party  having  title  to  a  por- 
tion of  it,  even  though  this  fact  was  known  to  the  purchaser  at 
the  time  of  the  contract,  the  vendor  having  at  that  time 
agreed  to  put  vendee  in  possession,  which  he  has  failed  to  do, 
and  the  answer  admitting  an  inability  to  deliver  possession. ^^ 
And  where  land  is  sold  conditionally,  the  purchaser  taking 
a  deed  and  giving  his  note  for  the  purchase  money,  and 
upon  failure  of  the  condition  the  purchaser  tenders  back  his 
deed  and  demands  his  note,  the  vendor  remaining  in  posses- 
sion, receiving  the  rents  and  selling  timber  from  the  premises, 
and  refusing  to  surrender  possession,  the  purchaser  may  en- 
join the  enforcement  of  a  judgment  upon  the  note,  the  bill 
alleging  the  vendor's  insolvency.^^ 

§  388.  Outstanding  incumbrances ;  covenants  of  quiet  en- 
joyment. Outstanding  incumbrances  or  an  outstanding  equi- 
table title  will  not  warrant  a  court  of  equity  in  enjoining 
the  collection  of  purchase  money  in  behalf  of  a  purchaser  who 
is  in  peaceable  possession  under  covenants  of  warranty.^o 
And  where  the  buyer  has  a  full  and  ample  remedy  at  law 
on  his  covenants  of  quiet  enjoyment,  he  can  not  sustain  a 
bill  for  an  injunction  on  the  ground  of  defect  of  title,  but 
will  be  left  to  pursue  his  remedy  at  law.-^ 

§  389.  Pendency  of  action  of  ejectment.  While,  as  we  have 
already  seen,  mere  general  averments  of  defective  title,  or 
the  fears  and  apprehensions  of  a  purchaser  that  the  title  will 
prove  defective,  will  not  warrant  a  court  of  equity  in  extend- 

1' Hilleary  v.  Crow,  1  Har.  &  J.  lo  Odell  v.  Reed,  54  Ga.,  142. 

542.  20  Elliott  V.  Thompson,  4  Humph., 

i^Nelsoa   v.   Qwen,  3    Ired.   Eo-,     99;    Senter  t\  Hill,  5  Sneed,  505. 
175.  21  Wilkins  v.  Hogue,  2  Jones  Eq., 

479. 


366  INJUNCTIONS.  [chap.  VI. 

ing  relief,--  yet  it  would  seem  that  if  the  title  is  actually 
called  in  question  by  an  action  of  ejectment,  there  is  suffic- 
ient ground  for  restraining  a  recovery  of  the  purchase  money 
until  the  proceedings  in  ejectment  are  terminated.^^  But  even 
in  such  case  it  has  been  held  necessary  to  charge  in  the  bill 
that  the  claim  of  title  on  which  the  ejectment  proceedings 
are  founded  is  a  valid  one.  And  an  injunction  has  been  re- 
fused against  a  sale  of  real  estate  under  a  mortgage  given  to 
secure  purchase  money,  where  the  relief  was  sought  on  the 
ground  that  a  third  party  had  instituted  proceedings  in  eject- 
ment to  recover  the  property,  there  being  no  allegation  in 
the  bill  that  the  claim  of  title  on  which  ejectment  was  brought 
was  well  founded.  In  other  words,  a  mere  claim  of  paramount 
title  by  a  third  person  and  his  bringing  suit  upon  such  claim 
against  the  vendee,  will  not  authorize  an  injunction  against 
the  vendor  who  has  warranted  the  title  to  restrain  him  from 
proceeding  to  collect  unpaid  purchase  money.-^  And  courts  of 
equity  never  interfere  in  behalf  of  a  purchaser  in  this  class  of 
cases,  unless  the  title  is  questioned  by  a  suit  either  prosecuted 
or  threatened,  or  unless  the  purchaser  can  clearly  show  that 
the  title  is  defective.-^ 

§  390.  Injunction  allowed  when  no  conveyance  given. 
"Where  no  conveyance  has  been  given  of  the  property  con- 
tracted to  be  sold  there  are  stronger  equities  in  support  of 
the  relief  by  injunction  than  where  the  land  has  actually  been 
conveyed,  since  the  purchaser,  having  no  covenants  of  war- 
ranty on  which  to  enforce  a  remedy  at  law,  is  compelled  to 
resort  to  equity  for  relief  against  an  injury  which  might  other- 
wise prove  irreparable.^^     Thus,  where  one  under  pretense  of 

22  French  v.  Howard,  3  Bibb,  301;  ^r.  Ralston  r.  Miller,  3  Rand.,  44. 

Truly  V.  Wanzer,  5  How.,  141.  26  Brannum    v.    Ellison,    5   Jones 

'-'••i  Johnson  v.  Gere,  2  Johns.  Ch.,  Eq.,    435;    Buchanan    v.    Alwell,    8 

TAG.  Humph.,    516;    Topp    v.   White,   12 

2iGayle   v.   Fattle,    14   Md.,    69;  Heisk.,     165.       And     see     Boyce's 

Kinports  v.  Rawson,  29  West  Va.,  Ex'rs  v.  Grundy,  3  Pet.,  210. 
487,  2  S.  E.,  85. 


CHAP.  VI.]         AFFECTING  EEAL  PEOPEKTY.  367 

a  title  in  himself  assumes  to  sell  land,  taking  bonds  for  the 
purchase  money,  but  in  reality  having  no  title  and  giving  no 
conveyance,  he  may  be  enjoined  from  attempting  to  enforce 
the  collection  of  the  bonds,  complainant  being  required  to 
surrender  possession  of  the  premises  as  a  condition  precedent 
to  obtaining  relief.^  And  where  the  vendor  of  real  estate 
executes  a  bond  for  title  and  the  purchaser  executes  a  bond 
for  the  purchase  price  at  the  same  time,  the  acts  being  con- 
current acts  and  to  be  performed  at  one  and  the  same  time,  it 
is  error  to  dissolve  a  preliminary  injunction  against  a  judg- 
ment obtained  by  vendor  for  the  purchase  money,  he  hav- 
ing failed  to  execute  a  conveyance  as  required  by  his  bond, 
and  the  injunction  should  be  perpetuated  to  the  hearing.- 

§  391.  Recovery  barred  by  statute  of  limitations.  But 
where  a  vendee  enters  under  a  title  bond  from  his  vendor  and 
holds  the  land  under  such  title  until  the  statute  of  limitations 
would  bar  a  recovery  by  an  adverse  claimant,  he  will  not  be 
allowed  to  set  up  a  defect  of  title  in  his  vendor  existing  at 
the  time  of  sale  to  him  as  a  ground  of  injunction  against  a 
judgment  for  the  purchase  money .^ 

§  392.  Sales  of  hazard.  Where  a  purchaser  of  land  has  ac- 
cepted a  conveyance  without  warranty  of  title,  it  has  been 
held  that  an  injunction  would  not  lie  against  unpaid  purchase 
money  in  the  absence  of  fraud  or  concealment  on  the  part  of 
the  vendor  concerning  the  title.'*  Such  a  purchase  may  prop- 
erly be  termed  a  sale  of  hazard,  and  it  may  be  laid  down  as 
a  general  rule  that  in  sales  of  hazard  equity  will  not  interpose 
in  the  absence  of  fraud  or  misrepresentation.^  Thus,  where 
a  sale  of  land  is  made  in  gross,  the  contract  being  one  of  haz- 
ard on  both  sides,  the  purchaser  is  not  entitled  to  relief  in 

1  Brannum    v.    Ellison,    5    Jones  *  Price's  Ex'rs  v.  Ayres,  10  Grat., 

Eq.,  435.  575. 

-  Brittain  v.  McLain,  3  Ired.  Eq.,  •''  Keyton  v.  Brawford,    5    Leigh, 

165.  39;  Carrico  v.  Froman,  2  Lit.,  178; 

3  Amick  V.  Bowyer,  3  West  Va.,  7.  Sutton  v.  Sutton,  7  Grat.,  234. 

24 


368  INJUNCTIONS.  [chap.  VI. 

equity  in  case  of  a  deficiency  in  the  amount.*"'  And  where  the 
purchase  is,  as  to  the  title,  one  of  hazard,  there  being  no  fraud 
or  concealment  concerning  the  title  by  the  vendor,  a  judg- 
ment for  the  purchase  money  will  not  be  enjoined,  even  though 
the  vendor  represented  the  title  as  good  when  it  was  defec- 
tive, his  representations  having  been  made  in  good  faith."  In 
such  eases  the  purchaser,  having  accepted  the  land  without 
any  agreement,  either  express  or  implied,  for  a  conveyance 
with  warranty,  is  regarded  as  having  taken  upon  himself  all 
risk  as  to  the  title,  and  he  is  therefore  debarred  from  relief 
in  a  court  of  equity.'^ 

§  393.  Covenant  not  to  withhold  payment  for  want  of  con- 
veyance. The  question  as  to  whether  equitable  relief  shall 
or  shall  not  be  given  in  a  particular  case  may  sometimes  be 
determined  by  the  nature  of  special  stipulations  made  by  the 
parties  at  the  time  of  sale.  Thus,  where  vendees  contract 
at  the  time  of  purchase  that  their  payments  shall  be  made 
promptly  and  shall  not  be  withheld  when  due  for  want  of  a 
conveyance,  such  agreement  is  sufficient,  in  the  absence  of 
fraud,  to  warrant  a  court  of  equity  in  denying  relief  by  in- 
junction against  a  judgment  for  payment  which  vendees  have 
refused  to  make  on  account  of  defective  title.*^ 

§  394.  False  representations  of  "vendor  as  to  quantity;  same 
as  to  use  of  water.  While  in  case  of  a  sale  of  land  in  gross, 
the  contract  being  one  of  hazard  on  both  sides,  equity  will  not, 
as  we  have  already  seen,  interfere  in  aid  of  the  purchaser  on 
account   of  a   deficiency   in   the   amount   of   land   conveyed,^** 

<=  Keyton   v.    Brawford,    5    Leigh,  should  be  made  to  the  land  in  ques- 

.39.  tion;   the  effect  of  this  stipulation 

'Sutton  V.  Sutton,  7  Grat.,  234;  is  not  touched  upon  by  the  court 

Carrico  v.  Froman,  2  Lit.,  178.    In  in  deciding  the  cause, 

the  latter  case  the  vendee  had  con-  »  Sutton  v.  Sutton,  7  Grat.,  234. 

tracted    in   his   bond    for    the   pur-  o  Lucas   v.    Chapeze.    2    Lit.,    31. 

chase  money  that  it  should  not  be  And  see  Carrico  r.  F.oman,  2  Lit., 

withheld    by    bill    in    chancery    or  178. 

otherwise    if    any    adverse    claims  J"  Keyton  v.  Brawford,  5  Leigh, 

39. 


CHAP.  VI.]  AFFIX  TIXG    HEAL    PROI'F RTY.  369 

yet  where  the  purchaser  has  relied  upon  the  vendor's  rep- 
resentations as  to  the  amount  of  land  the  case  is  somewhat 
different.  And  a  vendee  who  is  not  yet  is  possession  may 
enjoin  a  judgment  for  the  purchase  money  on  the  ground 
of  deficiency  in  the  amount  where  he  has  made  the  pur- 
chase relying  entirely  upon  vendor's  representations  as  to  the 
amount,  which  representations  prove  to  be  false. ^^  So  where 
three  separate  tracts  of  land  are  sold,  the'  title  proceeding 
through  as  many  separate  sources  or  deeds,  one  of  which 
entirely  fails,  so  that  the  vendor  could  have  had  no  authority 
to  sell  that  tract,  and  there  is  a  deficiency  in  the  remaining 
tracts,  a  judgment  for  the  purchase  money  may  be  enjoined 
to  the  extent  of  the  deficiency  in  the  land.  Under  such  cir- 
cumstances the  relief  is  granted,  not  because  of  a  deficiency 
in  the  amount  conveyed,  but  because  of  an  entire  failure  as  to 
one  tract,  the  land  specified  having  in  reality  no  existence.^ - 
So  upon  a  bill  by  the  purchaser  to  rescind  a  sale  of  real  estate 
and  to  enjoin  the  collection  of  his  notes  given  for  the  pur- 
chase money,  where  it  was  shown  that  the  grantor  had  falsely 
represented  at  the  time  of  sale  that  the  owner  of  the  premises 
sold  was  entitled  to  the  use  of  water  from  a  well  upon  an 
adjacent  lot,  it  was  held  that,  although  the  contract  could  not 
be  rescinded,  the  purchaser  was  entitled  to  an  injunction  as 
to  so  much  of  the  notes  as  would  equal  the  cost  of  sinking 
a  well  upon  the  premises  sold.^^ 

§  395.  Conflicting  decisions.  We  have  already  considered 
the  doctrine  that  the  purchaser  of  real  estate  in  actual  and 
peaceable  possession  under  covenants  of  warranty  will  not  be 
allowed  to  enjoin  the  collection  of  the  purchase  money  on 
account  of  defective  title.  The  authorities  supporting  that 
proposition  are  based  upon  the  universally  recognized  rule 
that  equity  will  never  interpose  for  the  purpose  of  granting 

11  Lee  V.  Vaughan,  Ky.  Dec,  238.         i^  Elder  v.  Sabin,  66  III.,  126. 
3  2  Strodes    r.    Patton.    1     Marsh. 
Dec,  228. 


370  INJUNCTIONS.  [chap,  vl 

relief  which  may  be  had  in  the  courts  of  law,  and  the  vendee 
being  in  the  enjoyment  of  undisturbed  possession  may  find 
ample  redress  for  any  defect  in  title  or  disturbance  of  his 
possession  by  an  action  at  law  upon  the  covenants  in  his  deed. 
Notwithstanding  the  array  of  respectable  authorities  in  sup- 
port of  this  rule,  there  are  other  cases,  neither  few  in  numl)er 
nor  wanting  in  authority,  which  have  held  a  doctrine  directly 
opposed  to  this,  and  the  courts  have  freely  exercised  the 
jurisdiction,  even  though  the  purchaser  was  protected  by  the 
covenants  in  his  deed.  It  remains  to  consider  these  cases,  as 
well  as  the  reasoning  upon  which  they  are  based. 

§  396.  Ca^es  where  injunction  allowed  because  of  defective 
title.  The  doctrine  has  been  broadly  laid  down  that  a  pur- 
chaser of  real  estate  with  general  warranty  is  entitled  to  an 
injunction  against  the  payment  of  the  purchase  money  upon 
proof  of  an  actual,  outstanding,  superior  title  in  a  tlyrd  per- 
son, or  of  fatal  defects  in  the  title  of  his  grantor.^^  Thus, 
where  land  is  sold  with  covenants  of  warranty  and  a  deed  of 
trust  is  given  to  secure  the  payment  of  the  purchase  money, 
discovery  of  an  adverse  claim  to  the  land  has  been  held 
sufficient  to  warrant  a  court  of  equity  in  enjoining  a  sale  under 
the  trust  deed  until  the  cloud  resting  on  the  title  is  removed.^^ 
Nor  is  the  right   of  the   purchaser  to   an  injunction   on   the 

1*  Gay  V.  Hancock,  1  Rand.,  72;  son,  4  Humph.,  99;   Senter  v.  Hill, 

Miller    v.   Argyle's   Ex'r,    5    Leigh,  5  Sneed,  505;    Truly   r.  Wanzer,  5 

460;  Clarke  v.  Hardgrove,  7  Grat.,  How.,  141. 

399;   Roger  v.  Kane,  5  Leigh,  606;         is  Gay  r.   Hancock,  1   Rand.,   72. 

Dorsey    v.    Hobbs,    10    Md.,    412;  And  see  Miller  r.  Argyle's  Ex'r,  5 

Yonge  V.  McCormick,  6  Fla.,  368;  Leigh,    460.      And    an    injunction 

Bullitt's  Ex'rs  v.  Songster's  Adm'rs,  has  been  allowed  to  prevent  a  sale 

3     Munf.,     55.       But    see,     contra,  of  real  estate  upon  a  judgment  for 

Swain  v.  Burnley,   1  Mo.    (2d  edi-  unpaid  purchase  money,  when  the 

lion),   286;    Bumpus  v.   Platner,   1  relief  was   sought  for  the   protec- 

Johns.   Ch.,   213;    Abbott  v.  Allen,  tion  of  complainant  in  the  value  of 

2  Johns.  Ch.,  519;  Gayle  v.  Fattle,  improvements    which    he    had    put 

14   Md.,   69;    Beale   v.    Seiveley,   8  upon  the  premises.    Seago  v.  Bass, 

Leigh,   658;    Wilkins  v.   Hogue,   2  49  Ga.,  9. 
Jones  Eq.,  479;   Elliott  v.  Thomp- 


CHAP.  VI. J         AFFECTING  EEAL  PEOPEETT.  371 

ground  of  defective  title  impaired  by  the  eircunistance  of  the 
vendor  seeking  to  collect  the  unpaid  purchase  money  from  a 
third  person  on  a  collateral  security  assigned  to  such  person 
by  the  purchaser.^'' 

§  397.  Entire  failure  or  want  of  title.  Equitable  relief  has 
been  allowed  for  the  protection  of  a  purchaser  where  the  con- 
sideration for  a  contract  of  sale  has  entirely  failed,  the  vendor 
having  stripped  himself  of  all  title  to  the  premises,  legal  or 
equitable,  and  being  in  no  condition  to  comply  with  his  con- 
tract to  convey.  In  such  case  neither  the  vendor  nor  his 
assignees  standing  in  his  stead  will  be  allowed  to  recover  the 
purchase  money,  and  a  judgment  on  a  bond  for  such  money 
will  be  perpetually  enjoined.^ ^  And  where  vendor  at  the  time 
of  making  his  agreement  to  convey  was  without  title  to  the 
premises,  an  injunction  may  be  allowed  against  proceedings 
at  law  upon  the  bond,  the  contract  being  treated  as  an  unexe- 
cuted one  until  vendee  has  received  that  for  which  he  has  con- 
tracted,^^ 

§  398.  Tbe  doctrine  in  Indiana.  It  is  the  established  doc- 
trine of  the  courts  of  Indiana  that  proceedings  for  the  collec- 
tion of  unpaid  purchase  money  may  be  enjoined  at  the  suit  of 
the  vendee,  until  the  vendor  has  made  good  the  title,  even 
although  the  vendee  does  not  tender  a  reconveyance  of  the 
lands,  the  suit  for  the  injunction  being  regarded  not  as  a 
proceeding  to  rescind  the  sale,  but  rather  to  enforce  it.^^  And 
the  relief  in  such  cases  is  granted  regardless  of  the  covenants 
in  the  vendor's  conveyance,  being  based  upon  the  element 
of  fraud  in  the  false  representations  made  by  the  vendor.-^ 
So  when  the  purchaser,  relying  upon  the  vendor's  fraudulent 

16  Clarke  v.  Hardgrove,  7  Grat.,  31;  Fitch  v.  Polke,  7  Blackf.,  564; 
399.  And  see  Ingram  v.  Morgan,  4  Warren  v.  Carey,  5  Ind.,  319;  Hin- 
Humph.,  66.  kle  v.  Margerum,  50  Ind.,  240.    See 

17  Buchanan  v.  Lorman,  3  Gill,  51.     also  Reed  v.  Tioga  Manufacturing 
isDorsey  v.  Hobbs,  10  Md.,  412.     Co.,  66  Ind.,  21. 

19  Addleman  V.Mormon, 7  Blackf.,         20  Hinkle  v.  Margerum,   50  Ind., 

240. 


372  INJUNCTIONS.  [chap.  VI. 

representations  as  to  his  title,  remains  in  ignorance  of  the  fact 
that  the  vendor  had  not  a  good  title  until  after  judgment 
is  obtained  against  him  for  the  unpaid  purchase  money,  such 
ignorance  is  a  sufficient  excuse  for  not  defending  at  law, 
and  he  may,  therefore,  enjoin  the  judgment.-^  But  it  is  held 
that  the  injunction  should  not  be  granted  when  it  is  not  shown 
that  the  vendor  is  insolvent.^^ 

§  399.  Effect  of  garnishee  proceeding's  against  purchaser. 
Relief  by  injunction  may  also  be  granted  in  aid  of  a  pur- 
chaser of  real  estate  who  is  harassed  by  different  proceedings 
for  the  collection  of  the  purchase  money,  not  only  by  the  ven- 
dor, but  by  his  judgment  creditors  seeking  to  reach  the  pur- 
chase money  through  garnishee  proceedings.  Thus,  where  a 
purchaser  is  in  possession,  not  having  paid  all  the  purchase 
money,  and  a  judgment  creditor  of  the  vendor  obtains  judg- 
ment against  the  purchaser  in  a  garnishee  proceeding,  and  is 
endeavoring  to  sell  the  land  which  is  subject  to  the  lien  of  his 
judgment,  the  purchaser  is  entitled  to  the  aid  of  an  injunc- 
tion to  restrain  the  vendor  from  collecting  a  note  given  for  the 
unpaid  purchase  money .-^ 

§  400.  Vendor's  insolvency  ground  for  relief.  The  question 
of  insolvency  of  the  vendor  as  affecting  the  right  of  the  pur- 
chaser to  enjoin  the  collection  of  unpaid  purchase  money  upon 
a  failure  of  title,  in  whole  or  in  part,  is  one  of  much  practical 
importance,  and  upon  which  there  is  the  same  noticeable  want 
of  harmony  in  the  rulings  of  the  courts  which  prevails  in  other 
branches  of  the  jurisdiction  which  forms  the  subject  of  the 
present  chapter.  The  weight  of  authority,  however,  is  clearly 
in  support  of  the  right  to  an  injunction  in  such  cases,  when 
by  reason  of  his  insolvency  the  vendor  is  unable  to  respond 
in  damages  in  an  action  at  law.  And  the  relief  is  extended 
in   such   cases  upon  the   ground   that  the   legal   remedy  being 

^»  Fitch  ('.  Polke.  7  Blackf..  5fi4.         •-••  Filliugin  v.  Thornton.  49  Ga., 
22  Wimberg    r.    Schwegeman,    97     .'?84. 
Ind..  528. 


CUAP.  VI.]  AFFECTING    REAL    PROFERTY.  373 

insufficient  by  reason  ol'  such  insolvency,  a  court  of  equity 
is  the  only  source  to  which  resort  can  be  had  for  the  re- 
dress of  a  grievance  which  might  otherwise  prove  irrepara- 
ble.-* Where,  therefore,  the  title  to  the  lands  conveyed  has 
partially  failed,  the  purchaser  may  enjoin  the  vendor  from 
transferring  the  notes  and  mortgage  given  for  the  purchase 
money,  the  bill  alleging  the  vendor  to  be  irresponsible,  since  if 
the  notes  were  transferred  to  an  innocent  holder  the  purchaser 
might  suffer  an  irreparable  injury.^"  The  doctrine  of  relief 
upon  the  ground  of  insolvency  has  been  carried  even  farther,, 
and  it  has  been  held  that  a  purchaser  in  possession,  under 
covenants  of  general  warranty,  even  though  the  title  has  not 
been  questioned  by  suit  either  prosecuted  or  threatened,  may 
enjoin  the  collection  of  purchase  money  upon  proof  of  defective 
title,  if  the  vendor  through  insolvency  is  unable  to  respond 
in  damages  in  an  action  upon  the  covenants  of  warranty.-*' 
Upon  the  other  hand,  it  has  been  sought  to  restrict  the  exercise 
of  the  jurisdiction  to  cases  where  the  element  of  fraud  is 
coupled  with  that  of  the  insolvency  of  the  vendor.  And  a  pur- 
chaser seeking  to  enjoin  a  sale  of  lands  for  unpaid  purchase 
money  upon  the  ground  of  the  vendor's  insolvency  and  the 
pendency  of  suits  by  third  persons  claiming  title  to  the  lands 
has  been  denied  relief  in  the  absence  of  any  allegations  of 
fraud  against  his  vendor.-''' 

§401.  Judicial  sales.  The  authorities  are  unsettled  as  to 
whether  relief  by  injunction  in  cases  of  defective  title  may  be 
extended  to  enforced  sales  under  judicial  process.  Upon  the 
one  hand,  it  has  been  held  that  where  the  purchaser  of  land  at 
a  sale  under  execution  has  given  a  bond  for  the  purchase  price, 

24  Yonge   V.    McCormick,    6    Fla.,  25  McDiinn  v.  City  of  Des  Moines, 

368;  McDunn<\  City  of  Des  Moines,  34  Iowa,  467. 

34  Iowa,   467.     See  also  Fehrle  v.  20  Yonge   v.    McCormick,    6    Fla., 

Turner,  77  Ind.,  530.     See,  contra,  368. 

Strong   V.    Downing,   34   Ind.,    300,  27  Strong    r.    Downing,    34    Ind.^ 

overruled     in    part    in     Fehrle     r.  300. 
Turner,  77  Ind.,  530. 


374  INJUNCTIONS.  [chap.  VI. 

he  may  restrain  the  enforcement  of  the  bond  on  showing  that 
defendant  in  execution  had  no  title  to  the  land  sold,  the  pur- 
chaser having  acted  in  good  faith.^s  Upon  the  other  hand, 
it  has  been  held  that  a  purchaser  at  a  judicial  sale  can  only 
obtain  relief  on  the  ground  of  defective  title  by  resisting  the 
confirmation  of  the  sale  in  the  proceedings  at  law  wherein 
such  sale  was  ordered,  and  he  is  not  entitled  to  enjoin  a  judg- 
ment on  his  bond  for  the  purchase  money.^^ 

§402.  Violation  of  vendor's  a^eement.  It  may  sometimes 
happen  that  the  vendor  has  by  his  own  agreement  placed  him- 
self in  such  position  that  it  would  be  inequitable  to  allow  him 
to  proceed  at  law  for  the  collection  of  purchase  money.  Thus, 
where  he  has  entered  into  a  contract  under  seal  with  the  vendee 
that  he  will  not  bring  suit  upon  the  bond  given  as  security 
for  part  of  the  purchase  price  until  the  quantity  of  the  land 
shall  be  definitely  ascertained,  and  in  violation  of  his  agree- 
ment has  instituted  proceedings  at  law  for  a  recovery  upon  the 
bond  before  the  quantity  of  the  land  has  been  ascertamed, 
it  has  been  held  that  the  proceedings  upon  the  bond  might 
be  perpetually  enjoined.^*'  And  when  land  is  sold  under  an 
agreement  that  the  vendee  shall  withhold  payment  of  the  pur- 
chase price  until  the  vendor  shall  furnish  a  full  and  complete 
title,  the  latter  may  be  enjoined  from  enforcing  a  mortgage 
securing  the  unpaid  purchase  money  until  he  has  complied 
with  his  contract  to  furnish  a  good  title.-"^! 

§  403.  Vendor's  failure  to  procure  outstandings  title.  Fail- 
ure of  the  vendor  to  comply  with  his  agreement  to  procure  a 
relinquishment  of  outstanding  titles  or  interests  in  the  land 
conveyed  has  sometimes  been  held  sufficient  ground  for  the 
interference  of  equity  by  injunction.^^-     Thus,  where  the  ven- 

28  Bartlett  v.  Loudon,  7  J.  J.  ■•"  Bullitt's  Ex'rs  v.  Songster's 
Marsh.,  641.  Adm'rs,  3  Munf.,  55. 

20Threlkelds  v.  Campbell,  2  •"  Wade  r.  Percy,  24  La.  An.,  173. 
Grat.,   198.  •'-  McKoy  r.  Chiles,  5  Monr.,  259; 

.Taynes  r.  Brock,  10  Grat.,  211. 


CHAP.  VI.]         AFFECTING  REAL  PEOPEETY.  375 

dor  has  contracted  to  procure  a  conveyance  to  the  vendee  of 
the  title  of  other  joint  owners  of  the  premises,  but  fails  to  do 
so,  he  may  be  enjoined  from  enforcing  a  judgment  upon  ven- 
dee's bond  for  the  purchase  price,  even  though  the  vendee 
himself  procures  the  remainder  of  the  title  directly  from  the 
other  owners.^'"^  So  the  failure  of  the  grantor  to  procure  a 
relinquishment  of  his  wife's  dower,  which  he  had  agreed  to 
do  when  the  purchaser  accepted  his  conveyance,  has  been 
held  sufficient  ground  for  enjoining  a  judgment  for  the  pur- 
chase money.  But  an  injunction  granted  under  such  circum- 
stances will  be  dissolved  on  vendor  afterward  procuring  a 
release  of  the  wife's  dower,  though  the  writ  having  been 
properly  granted  in  the  first  instance  no  damages  will  be 
allowed  upon  its  dissolution.^* 

§404.  Injunction  allowed  when  legal  remedy  inoperative. 
The  fact  that  the  remedy  at  law  against  the  grantor  with 
covenants  of  warranty  is  inoperative  affords  strong  ground 
for  relief  in  equity  against  payment  of  purchase  money.  And 
where  the  grantor  is  a  non-resident  and  has  not  sufficient  prop- 
erty in  the  state  to  satisfy  a  judgment  in  damages  for  breach 
of  his  covenants  of  warranty,  the  injunction  may  be  allowed 
on  proof  of  defective  title,  especially  where  the  purchaser  has 
not  yet  obtained  possession  of  that  portion  of  the  land  to  which 
the  title  is  defective,  it  being  held  adversely.^''^'* 

§  405.  Duty  of  vendor  seeking  dissolution.  Where  the  ven- 
dor of  real  estate,  who  has  been  enjoined  from  collecting  the 
purchase  money  on  account  of  defective  title,  seeks  a  dissolu- 
tion of  the  injunction  the  burden  is  thrown  upon  him  of  estab- 
lishing a  good  title.^*'     And  in  such  case  the  vendor  will  be 

33  Jaynes  v.  Brock,  10  Grat.,  211.  Scobie,  5   B.   Mon.,  387;     Lampton 

31  McKoy  V.  Chiles,  5  Monr.,  259.  v.   Usher's    Heirs,    7    B.    Mon.,    57; 

And  see  as  to  refusal  of  damages  Fishback  v.  Williams,  3  Bibb,  342. 

on    dissolution    of    an    Injunction  And  see,  post.  §  413. 

properly   granted   to  restrain  pay-         ss  Richardson     r.     Williams,      .'> 

ment  of  purchase  money,  Porter  v.  Jones  Eq.,  116. 

36  Moredock  v.  Williams,  1  Overt.. 


376  INJUNCTIONS.  [chap.  VI. 

required  to  produce  his  title  to  the  court  in  order  that  it  may 
be  satisfied  of  its  sufficiency  to  warrant  a  dissolution  of  the 
injunction.3'^  Nor  will  the  purchaser  be  required  to  accept 
a  conveyance  from  a  third  person  to  perfect  the  title,  he  being 
protected  by  the  covenants  of  warranty  of  his  vendor.*^^ 

§  406.  Injunction  rarely  perpetuated.  While,  as  we 
have  seen  in  the  preceding  sections,  the  jurisdiction  in 
restraint  of  the  payment  of  purchase  money  is  freely  exer- 
cised, a  perpetual  injunction  will  rarely  be  granted, 
and  equity  will  only  extend  its  protection  until  the  de- 
fective title  is  cured,  or  until  the  purchaser  can  pursue  his 
remedy  at  law  on  his  covenants  of  warranty .^^  And  if  the 
purchaser  under  a  general  warranty,  who  has  procured  a  pre- 
liminary injunction,  fails  to  prosecute  his  legal  remedy  on  his 
covenants  of  warranty  within  a  reasonable  period  the  injunc- 
tion will  be  dissolved.*^  So  where  the  vendee  has  obtained 
an  injunction  on  the  ground  of  defective  title,  the  vendor  is 
entitled  to  a  dissolution  on  curing  the  defect  by  a  conveyance 
of  the  outstanding  title,  even  though  there  are  general  allega- 
tions in  the  bill  of  other  outstanding  title,  such  allegations 
being  unsupported  by  proof. *^  And  a  vendee  who  has  obtained 
an  injunction  against  a  judgment  for  purchase  money  of  real 
estate  is  not  entitled  to  have  his  injunction  perpetuated  and  to 
have  the  benefit  of  his  purchase  at  the  same  time.^^ 

§  407.  Purchaser  with  knowledge  of  defect  can  not  enjoin. 
The  relief  in  this  class  of  cases  resting  principally  upon  fraud 

325;     Moore     v.     Cook,     2     Hayw.  if  allowed  before  vendor  has  made 

(Tenn.),  84.  good  the  title  the  injunction  should 

■'■'  Moredock  v.  Williams,  1  Overt.,  be  reinstated.    Grantland  r.  Wight, 

325.  2  Munf.,  179. 

3H  Moore     v.     Cook,      2      Hayw.  '"Swain   v.   Burnley,  1   Mo.    (2d 

(Tenn.),  84.  edition).  286. 

■■"'  I^vell  V.  Chilton,  2  West  Va.,  ■"  Lovell  p.  Chilton.  2  West  Va., 

410;    Swain  v.  Burnley,  1  Mo.   (2d  410. 

edition),  286.   But  it  has  been  held  ••-*  Markham     r.    Todd,     2    .T.    J. 

that    a    dissolution    should    never  Marsh..    364;    Edwards    r.    Strode, 

be   allowed   until    the  tender  of   a  2   .7.   .T.   Marsh.,   506. 
good   and  sufficient  title,  and   that 


CHAP.  VI. J         AFFECTING  EEAL  PROPERTY.  377 

on  the  part  of  the  vendor,  the  jurisdiction  will  not  be  exer- 
cised in  favor  of  one  who  buys  with  full  knowledge  of  a 
defective  title,  since  in  such  case  he  assumes  all  risk  as  to  the 
condition  of  the  title,  and  is  not  misled  by  fraudulent  repre- 
sentations on  the  part  of  the  grantor.*^  And  one  who  pur- 
chases real  estate  knowing  at  the  time  of  purchase  that  the 
title  is  doubtful,  will  not  be  permitted  after  taking  posses- 
sion of  the  premises  to  enjoin  a  judgment  for  the  purchase 
money  on  the  ground  of  defective  title  and  because  his  con- 
veyance proves  to  be  of  a  life  estate  instead  of  the  fee  simple. 
In  such  case  the  vendor  will  be  decreed  to  make  a  conveyance 
of  the  fee,  and  the  purchaser  will  be  left  to  his  remedy  at  law 
on  his  covenants  of  warranty.^^ 

§  408.  Rescission  of  contract  by  purchaser.  The  question  of 
whether  the  jurisdiction  will  be  exercised  where  the  purchaser 
does  not  offer  to  rescind  the  contract  and  restore  possession 
to  the  grantor  may  still  be  regarded,  owing  to  the  unsettled 
state  of  the  authorities,  as  an  t)pen  one.  The  doctrine  has 
been  broadly  asserted  that  the  purchaser  in  possession  seeking 
to  enjoin  payment  of  the  purchase  money  on  the  ground  of 
failure  of  title,  will  in  no  event  be  allowed  relief  where  he 
does  not  pray  a  rescission  of  the  contract  or  offer  to  restore 
possession  to  the  grantor.^-"  Upon  the  other  hand,  it  is  held 
that  an  injunction  will  lie  on  the  ground  of  failure  of  title, 
even  though  no  offer  is  made  by  the  purchaser  to  rescind  the 
contract  of  sale,  and  no  tender  is  made  of  a  reconveyance, 
since  the  purpose  of  the  suit  for  an  injunction  is  not  to  rescind 
the  contract  of  sale  or  the  conveyance,  but  rather  to  enforce 
it.'**'  Indeed,  a  still  broader  doctrine  has  been  asserted,  and 
it  has  been  held  that  a  deficiency  in  the  quantity  of  land  sold, 

*^  Williamson  v.    Raney,   Freem.  187.     And   see   Markham   v.   Todd, 

Ch.,  112.  2  J.  J.  Marsh.,  364. 

44  Merritt  w.  Hunt,  4  Ired.  Bq.,  46  Warren  t\  Carey,  5  Ind.,  319; 
406.  Addleman    r.    Mormon,    7    Blackf., 

45  Williamson  v.  Raney,  Freem.  31;  Fitch  t\  Polke,  7  Blackf.,  564; 
Ch.,  112;  Jackson  v.  N>rton,  6  Cal.,  Hinkle  v.  Margerum,  50  Ind.,  240. 


378  INJUNCTIONS.  [chap.  VI. 

if  discovered  before  the  purchase  money  is  all  paid,  while  it 
will  warrant  an  injunction,  does  not  constitute  a  sufficient 
ground  for  rescinding  the  contract  where  the  vendor  is  guilty 
of  no  fraud  and  has  sold  without  warranty."*'^ 

§  409.  Effect  of  special  stipulations  as  to  payment.  In  con- 
formit}'  with  the  general  rule  denying  relief  in  equity  upon 
grounds  which  might  have  availed  in  defense  of  an  action  at 
law,  an  injunction  against  a  judgment  for  purchase  money 
will  not  be  sustained  because  of  a  dispute  concerning  title 
where  by  the  terms  of  the  contract  the  purchaser  is  not  obliged 
to  pay  the  final  installment  until  the  question  of  disputed  title 
shall  be  determined.  The  purchaser  under  such  contract,  hav- 
ing failed  to  avail  himself  of  his  defense  in  the  suit  at  law 
for  the  final  installment  of  the  purchase  price,  is  by  his  own 
negligence  barred  from  relief  in  equity."*'^  And  where  by  the 
terms  of  the  contract  of  sale  the  purchaser  is  not  to  receive 
title  until  full  payment  is  made,  he  wnll  not  be  allowed  to 
enjoin  an  action  at  law  for  the  purchase  money  on  the  ground 
of  failure  of  title  where  he  has  not  offered  to  pay  the  money.-*^ 

§  410.  Difficulty  in  obtaining  title  resulting  from  purchaser 's 
own  negligence.  Mere  difficulty  in  obtaining  title  resulting 
from  the  purchaser's  own  negligence  will  not  warrant  a  court 
of  equity  in  interposing  for  his  protection  where  no  especial 
blame  attaches  to  the  vendor.  Thus,  a  judgment  for  purchase 
money  will  not  be  enjoined  because  of  difficulty  in  obtaining 
title  from  infant  heirs  of  the  vendor,  the  purchaser  having  neg- 
lected during  the  lifetime  of  vendor  to  make  payment  and  ob- 
tain a  conveyance.^*^ 

§411.  Set-off;  recoupment;  unpaid  taxes.  It  is  a  well  es- 
tablished principle  that  unliquidated  danuiges  can  not  be  urged 

47  Moredock  v.  Rawlings,  3  Monr.,         f^"  Prout  v.  Gibson,   1  Cranch   C. 

73_  C,   389.      In    this    case    the   infant 

"•«  Allen   V.  Phillips,  2   Lit.,   1.  heirs  were  not  made  parties  to  the 

<!'  Mitchell    V.    Sherman,    Freem.  bill. 
Ch..  120. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  379 

by  way  of  set-off  in  proceedings  in  equity.  In  conformity  with 
this  principle  it  is  held  that  a  bill  will  not  lie  to  enjoin  an  unpaid 
balance  of  purchase  money  whose  real  object  is  to  obtain  dam- 
ages for  an  alleged  fraud  in  the  transaction.  The  object  of 
such  proceedings  being  simply  to  procure  damages  a  court  of 
law  is  the  proper  forum  in  which  to  seek  relief.^^  Nor  will  a 
judgment  for  purchase  money  be  enjoined  for  the  purpose  of 
allowing  the  purchaser  to  introduce  matters  of  recoupment 
and  deductions  claimed  by  him  on  the  ground  of  usury,  when 
his  legal  remedy  is  clear  for  the  redress  of  such  grievances.^^ 
And  where  an  injunction  is  sought  on  the  ground  of  unpaid 
taxes  which  constitute  a  lien  on  the  premises,  if  the  amount 
of  the  taxes  is  so  small  as  to  fall  below  the  amount  fixed  by 
statute  as  the  minimum  of  the  jurisdiction  of  the  court,  the 
relief  will  be  refused.'""-'^ 

§  412.  Diligence  required  in  remedy  at  law.  A  purchaser 
seeking  the  aid  of  equity  against  the  enforcement  of  the  ven- 
dor's right  to  the  purchase  money  on  the  ground  of  fraud, 
must  use  reasonable  diligence  in  availing  himself  of  whatever 
remedy  he  may  have  at  law.  And  where  a  purchaser  of  realty, 
claiming  that  he  was  induced  to  purchase  by  false  and  fraud- 
ulent representations  as  to  a  never-failing  spring  upon  the 
premises,  neglects  to  pursue  his  legal  remedy,  either  by  re- 
couping his  damages  in  an  action  brought  by  the  vendee  for 
the  balance  of  the  purchase  money,  or  by  a  separate  action  of 
his  own  for  the  fraud,  he  will  not  be  allowed  to  restrain  ven- 
dor from  enforcing  his  judgment  for  the  purchase  money.^'^ 

§  413.  Damages  on  dissolution.  Since  the  question  of  dam- 
ages on  the  dissolution  of  an  injunction  is  dependent  upon 
whether  the  jurisdiction  was  properly  exercised  upon  sufficient 
cause  in  the  first  instance,  it  follows  that  where  an  injunction 

51  Robertson     v.     Hogsheads,  3  '"-  Collins  v.  Clayton,  53  Ga.,  649, 

Leigh,     667;     Koger    v.     Kane,  5  "'Reynolds    v.    Howard,    3    Md. 

Leigh,    606.        And    see    Frieze  v.  Ch.,  331. 

Chapin,  2  R.  L,  429.  s*  Hall  v.  Clark,  21  Mo.,  415. 


380  INJUNCTIONS.  [CIIAI'.  VI. 

has  been  properly  granted  against  a  judgment  for  purchase 
money  because  of  defective  title  to  the  premises  conveyed  and 
has  been  dissolved  upon  the  title  being  perfected  by  the 
grantor,  no  damages  should  be  allowed  upon  the  dissolution. 
In  such  cases,  the  purchaser  having  properly  invoked  the  aid 
of  equity  for  the  protection  of  his  right  should  not  be  com- 
pelled to  pay  damages  to  the  vendor  who  alone  is  in  fault. ^'"' 

S5  Fishback  v.  Williams,  3  Bibb,  obtains     an      injunction     on     the 

342;     McKoy    v.    Chiles,    5    Monr.,  ground  of  defective  title  is  entitled 

259;     Porter  v.  Scobie,  5  B.  Mon.,  to    costs,    even    though    the    title 

387;   Lampton  v.  Usher's  Heirs,  7  should    afterward    be    made   good. 

B.  Mon.,  57;    Reeves  v.  Dickey,  10  Reeves  v.  Dickey,  10  Grat.,  138. 
Grat.,  138.    And  the  purchaser  who 


CHAT.  VI.]         AFFECTING  KEAL  TKOPEKTY.  381 


VT.  Ejectment. 

§  414.  Equity   averse  to  interference  with  ejectment. 

415.  Injunction  refused  where  defense  can  be  made-  at  law. 

416.  Payment  of  rent. 

417.  Estoppel    by   plaintiff   in   ejectment. 

418.  Fraud  of  plaintiff  in  ejectment  ground  for  injunction;  illustra- 

tions. 

419.  Prior  jurisdiction  of  equity  ground  for  injunction. 

420.  Cloud  upon  title;   equal  equities. 

421.  Mistake  of  fact  ground  for  injunction. 

422.  Multiplicity   of  suits. 

423.  Repudiation  of  infant's  contract. 

424.  Statute  of  limitations. 

425.  Rights  of  mortgagees. 

426.  Parties  to  the  action. 

427.  Rights  of  tenants;    crops. 

428.  When  plaintiff  in  ejectment  allowed  to  proceed  to  trial. 

429.  Death  of  defendant  before  answer. 

429a.  Writ   of  possession  enjoined  until  compensation  for  improye- 
ments. 

§414.  Equity  averse  to  interference  with  ejectment.  Al- 
though injunctions  are  sometimes  granted  to  stay  proceedings 
in  ejectment  for  the  recovery  of  real  property,  the  jurisdiction 
is  by  no  means  a  favorite  one  with  courts  of  equity,  and  the 
usual  course,  in  the  absence  of  fraud  or  some  special  circum- 
stances demanding  the  relief,  is  to  leave  all  questions  of  title 
to  be  determined  by  courts  of  law.  And  it  may  be  asserted 
generally  that  equity  will  not  in  the  course  of  judicial  pro- 
ceedings restrain  a  person  from  asserting  title  to  real  estate 
unless  in  a  case  entirely  free  from  doubt.  Where,  therefore, 
the  title  is  being  tested  by  an  action  of  ejectment  in  a  com- 
mon law  court  having  jurisdiction  of  the  subject-matter,  a 
court  of  equity  will  rarely  interfere  or  enjoin  the  proceed- 
ings.^    An  injunction  under  such  circumstances  would  be  re- 

1  Stockton  V.  Williams,  1  Doug.     Savage  v.  Allen,  54  N.  Y.,  458,  af- 
(Mich.),  546;  Northeastern  R.  Co.     firming  S.  C,   59  Barb..  291. 
V.  Barrett,   65   Ga.,   601.     See  also 


382  INJUNCTIONS.  [chap.  VI. 

pugnant  to  the  well  established  principle  that  where  there  is 
concurrent  jurisdiction  over  the  same  subject-matter  in  dif- 
ferent tribunals,  the  right  of  determining  the  controversy  at- 
taches to  that  tribunal  to  which  resort  is  first  had.^ 

§  415.  Injunction  refused  where  defense  can  be  made  at  law. 
In  conformity  with  the  principles  laid  down  in  the  preceding 
section,  proceedings  in  ejectment  will  not  be  enjoined  where 
the  questions  of  title  involved  may  be  properly  determined 
at  law,  or  where  the  ground  relied  upon  for  an  injunction 
would  be  equally  available  if  urged  as  a  defense  to  the  action 
of  ejectment.^  Thus,  where  a  preliminary  injunction  has  been 
granted  against  proceedings  in  ejectment,  it  will  be  dissolved 
as  to  that  part  of  the  property  in  controversy,  the  title  to 
which  may  be  properly  determined  in  the  proceedings  at  law.* 
Nor  will  an  injunction  be  retained  restraining  an  action  of 
ejectment  where  it  is  perfectly  clear  and  apparent  that  com- 
plainants have  a  good  defense  to  the  action  at  law,  and  that 
the  deed  on  which  plaintiff  in  ejectment  relies  is  utterly  void, 
but  the  parties  will  be  left  to  the  decision  of  a  court  of  law.^ 
Where,  therefore,  complainants  are  in  possession  of  real  estate, 
they  can  not  enjoin  defendant  who  is  out  of  possession  from 
prosecuting  an  action  of  ejectment  against  them  for  the  re- 
covery of  the  premises,  upon  the  ground  that  the  deed  under 
which  plaintiff  in  ejectment  claims  is  absolutely  void,  either 

2  Stockton  V.  Williams,  1   Doug.  Byrne  v.   Brown,   40    Fla.,   109,   23 

(Mich.),  546;   Northeastern  R.  Co.  So.,    877;    Hawkinberry    v.     Snod- 

r.   Barrett,  65  Ga.,   601.  grass,  39  West  Va.,  332,  19  S.  E., 

•'■  Camden    &    Amboy    R.    Co.    v.  417.     As  to  the  right  to  enjoin  the 

Stewart,  3  C.  E.  Green,  489;  Morris  taking  out  of  a  writ  of  possession 

Canal    &    Banking    Co.    v.    Jersey  for  the  enforcement  of  a  judgment 

City,  1  Beas.,  227;  Savage  v.  Allen,  in  ejectment,  see  Buchannon  v.  Up- 

54   N.  Y.,  458,  affirming   S.   C,  59  shaw,  1  How.,  56. 

Barb.,  291 ;   Northeastern  R.  Co.  v.  •*  Camden    &    Amboy    R.    Co.    v. 

Barrett,     65     Ga.,     601;     Shaw     v.  Stewart,   3  C.   E.   Green,  489. 

Chambers,  48  Mich.,  355;   Gable  v.  "'Morris  Canal  &  Banking  Co.  v. 

Wetherholt.   116  111.,   313,  6  N.  E.,  .Jersey   City,   1   Beas.,   227;    Bishop 

453;  Mountain  Lake  P.  Assn.  v.  of  Chicago  v.  Chiniquy,  74  111.,  317. 
Shartzer,  83  Md.,  10,  34  Atl.,  536; 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  383 

for  want  of  delivery  and  acceptance,  or  because  obtained  by 
duress  and  fraud,  since  in  either  event  the  defense  in  the  action 
of  ejectment  would  be  complete.''  And  where  the  proceedings 
in  ejectment  have  reached  a  final  judgment,  equity  will  not 
lend  its  aid  for  the  purpose  of  restraining  the  enforcement  of 
such  judgment  upon  grounds  which  might  properly  have  been 
urged  in  defense  of  the  action.''' 

§  416.  Payment  of  rent.  It  is  regarded  as  extremely  doubt- 
ful whether  a  court  of  equity  would,  under  any  circumstances, 
restrain  proceedings  in  ejectment  brought  for  the  non-pay- 
ment of  rent.^  And  the  fact  that  defendant  in  the  injunction 
suit  is  prosecuting  an  action  of  ejectment  against  complainant, 
as  well  as  an  action  to  recover  possession  of  the  same  premises 
for  non-payment  of  rent,  affords  no  ground  for  enjoining  the 
proceedings  at  law,  since  the  defense  should  be  interposed  to 
the  actions  at  law,  and  defendant,  if  successful  in  either  of 
those  actions,  could  plead  the  judgment  in  bar  of  the  "other 
suit.°  So,  pending  an  action  in  the  nature  of  ejectment  for 
the  recovery  of  real  property,  both  parties  claiming  title 
thereto  and  defendants  being  in  possession,  one  of  the  defend- 
ants will  not  be  enjoined  from  paying  rent  to  another,  since 
equity  does  not  interfere  to  restrain  a  defendant  from  en- 
joying the  fruits  of  his  possession  and  claim  of  title  pending 
the  litigation,  when  it  is  not  shown  that  complainant  will  lose 
the  benefit  of  his  recovery  if  he  establishes  his  title. ^*^ 

§  417.  Estopped  by  plaintiff  in  ejectment.  Where,  however, 
plaintiff  in  ejectment  is  in  equity  and  conscience  estopped 
from  any  claim  to  recover  the  premises,  as  where  his  conduct 
has  been  such  as  to  w^arrant  defendant  in  going  on  with  the 
erection  of  works  and  the  expenditure  of  large  amounts  of 
money,  the  action  may  properly  be   enjoined.^ ^     And  where 

6  Bishop  of  Chicago  v.  Chiniquy,  »  Grissler  iK  Stuyvesant,  67  Barb., 

74  111.,  317.  77. 

T  Agard  v.  Valencia,  39  Cal.,  292.  lo  Baldwin  v.  York,  71  N.  C,  463. 

8  Clancy  v.  Roberts,  1  Ir.  Eq.,  21.  Ji  Trenton  Banking  Co.  v.  McKel- 
25 


384  INJUNCTIONS.  [chap.  VI. 

one  has  encouraged  the  making  of  expenditures  upon  land 
to  such  an  extent  that  the  parties  can  be  reimbursed  only  by 
the  enjoyment  of  the  land  itself,  he  may  be  enjoined  from 
prosecuting  an  action  of  ejectment  to  recover  possession  of  the 
premises.^-  So  where  complainant  was  let  into  possession  of 
real  estate  for  the  purpose  of  building  thereon,  under  a  parol 
agreement  with  the  owner  for  a  lease  for  a  term  of  years,  and 
he  has  in  good  faith  expended  a  large  sum  of  money  in  im- 
provements upon  the  premises,  under  an  agreement  or  under- 
standing with  the  owner  that  he  should  not  be  disturbed  in 
his  possession,  equity  may  properly  enjoin  the  owner  from 
bringing  ejectment.^^  So,  too,  the  conduct  of  the  ancestor 
may  be  such  as  to  operate  as  an  estoppel  against  himself  or 
his  heir,  to  prevent  the  assertion  of  the  legal  title  to  the 
premises.  FOr  example,  where  the  owner  of  real  estate  fences 
ott'  a  portion  and  declares  his  intention  of  giving  it  to  his 
nephew^  puts  him  in  possession  and  encourages  him  to  make 
valuable  improvements  thereon  under  a  promise  to  convey  the 
title  to  him,  but  dies  without  making  such  conveyance,  equity 
will  enjoin  the  heir  from  prosecuting  an  action  of  ejectment 
for  the  recovery  of  the  lands.^'*  And  upon  a  bill  to  enforce 
specific  performance  of  an  agreement  for  a  lease,  complainant 
having  expended  considerable  sums  in  improving  the  premises 
under  his  agreement  with  the  lessor,  an  injunction  was  allowed 
to  restrain  an  action  of  ejectment  by  the  lessor  upon  condi- 
tion of  complainant  submitting  to  judgment  in  ejectment  and 
undertaking  to  abide  such  order  as  the  court  of  equity  might 
make  with  respect  to  the  delivery  of  possession,  and  also 
undertaking  to  expedite  the  hearing  of  the  chancery  cause.^^ 

way,  4  Halst.  Ch.,  8t;    Big  Moun-  '"Thornton  «'.   Ramsden,   4  Gif.. 

tain   Iron  Co.'s  Appeal,  54  Pa.  St.,  519. 

301;   Thornton  v.  Ramsden,  4  Gif.,  i*  Burton  r.  Duffield,  2  Del.  Ch.. 

519;   Attwood  V.  Barham,  2  Russ.,  130. 

18G.  loAttwoort   r.   Barham,   2   Russ., 

'-  BiR   Mountain    Iron    Co.'s    Ap-  186'. 
poal,  54  Pa.  St.,  3G1. 


CHAP.  VI.]  AFFECTING   EEAL    PROPERTY.  385 

And  a  court  of  equity  may  enjoin  an  action  of  ejectment  based 
upon  a  title  derived  through  the  foreclosure  of  a  mortgage 
which,  at  the  time  of  the  purchase  of  the  land  by  complainant 
from  the  mortgagor,  defendant  agreed  not  to  hold  as  a  charge 
against  the  property,  thereby  creating  an  equitable  estoppel 
against  the  assertion  of  the  mortgage.^*'  So  equity  will  restraii 
an  action  of  ejectment  brought  against  a  railroad  company 
to  recover  possession  of  land  occupied  as  a  right  of  way  with- 
out compensation  therefor  to  the  owner,  where  the  plaintifi 
in  the  ejectment  is  equitably  estopped  by  his  acquiescence  in 
the  construction  of  the  road  from  asserting  title  to  the  land. 
And  in  such  case  complainant  will  not  be  compelled  to  make 
compensation  as  a  condition  to  the  granting  of  relief  in  the 
absence  of  a  cross-bill  seeking  it.'^  But  where  the  bill  affirma- 
tively offers  to  pay  an  equitable  compensation  for  the  right 
of  way,  the  injunction  should  not  be  granted  until  the  amount 
of  such  compensation  is  ascertained  and  paid.^^ 

§  418.  Fraud  of  plaintiff  in  ejectment  ground  for  injunc- 
tion; illustrations.  Fraudulent  conduct  and  bad  faith  upon 
the  part  of  plaintiff  in  ejectment  has  been  treated,  in  some  in- 
stances, as  constituting  sufficient  foundation  for  preventive  re- 
lief against  the  judgment.^"-'  Thus,  a  judgment  in  ejectment 
has  been  enjoined  when  plaintiff  in  that  action  had  obtained 
his  title  in  bad  faith  and  in  fraud  of  complainant's  rights  in 
the  same  premises,  of  which  he  was  fully  advised.-^  And 
where  an  infant  who  had  attained  years  of  discretion  conveyed 
land  to  her  father  to  enable  him  to  borrow  money  thereon  by 
mortgage,  the  mortgagee  loaning  the  money  in  ignorance  of 
the  fact  of  infancy,  and  being  afterward  obliged  to  take  a  con- 

16  Fields  r.  Killion,  129  Ala.,  373,  i^' Ferguson  v.  Bobo,  54  Miss., 
29  So.,  797.  121;    Parrill   v.   McKinley,   6   West 

17  Hendrix  v.  Southern  Ry.  Co.,  Va.,  67;  Big  Mountain  Iron  Co.'s 
130  Ala.,  205,  30  So.,  596,  89  Am.  Appeal,  54  Pa.  St.,  361;  Reavis  v. 
St.  Rep.,  27.  Reavis,  50  Ala.,  60. 

IS  McLure  r.  Ala.  M.  Ry.  Co.,  130  20  Parrill  v.  McKinley,  6  West 
Ala.,  436,  30  So.,  440.  Va.,   67. 


386  INJUNCTIONS.  [chap,  VI. 

veyance  from  the  father  in  part  satisfaction  of  the  mortgage 
debt;  and  the  infant  then  recovered  judgment  for  the  land 
in  ejectment,  it  was  held  that  she  was  estopped  from  asserting 
her  legal  title,  and  that  the  judgment  should  be  enjoined  upon 
the  ground  of  fraud  and  estoppel.^i  gQ  ^j^  injunction  has  been 
allowed  against  the  prosecution  of  an  action  of  ejectment  for 
the  recovery  of  lands  occupied  by  a  railway  company,  plain- 
tiff in  ejectment  having  acquired  his  title  with  actual  notice 
of  the  occupancy  and  interest  of  the  railway  company  in  the 
lands.22  And  in  conformity  with  the  doctrine  of  implied  trusts, 
ejectment  against  a  corporation  may  be  restrained  where  plain- 
tiff in  the  action  has  acted  for  the  corporation,  and  where, 
though  taking  the  title  in  his  own  name,  he  is  considered  in 
equity  as  a  trustee  for  the  company.23  So  when  a  vendor  of 
lands  recovers  judgment  against  the  purchaser  for  the  unpaid 
purchase  money,  and  it  is  then  agreed  between  the  parties 
that  the  father  of  the  purchaser  shall  pay  the  judgment  and 
take  a  conveyance  of  the  premises  directly  from  the  original 
vendor,  whose  unrecorded  deed  to  the  original  purchaser  is 
to  be  given  up  and  canceled,  and  the  arrangement  so  made  is 
carried  out  accordingly,  but  the  first  purchaser  then  brings 
ejectment  against  his  father,  the  action  may  properly  be  en- 
joined.2^  And  where  ejectment  is  brought  by  heirs  against  a 
purchaser  of  lands  of  the  deceased  at  a  void  probate  sale 
made  by  his  administrator,  the  purchaser  having  paid  the  pur- 
chase money  to  the  administrator,  who  has  distributed  it  in 
good  faith  among  the  creditors  of  the  deceased,  while  equity 
will  not  enjoin  the  prosecution  of  the  action  of  ejectment  by 
the  heirs,  it  may  properly  restrain  the  execution  of  the  judg- 
ment by  taking  possession,  until  the  purchase  money  has  been 
refunded.-'' 

21  Ferguson  r.    Bobo,    54    Miss.,         -*  Reavis   c.  Reavis,   50  Ala.,  60. 
121.  •■^■>  Hill  r.  Billingsly,  53  Miss.,  111. 

22  Detroit  &  M.  R.  Co.  v.  Brown,     See    also    Gaines    r.    Kennedy,    53 
37  Mich.,  533.  Miss.,  103. 

-^  Bie;  Mountain   Iron    Co.'s   Ap- 
real,  54    Pa.  St..   361. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  387 

§  419.  Prior  jurisdiction  of  equity  ground  for  injunction. 
It  is  also  regarded  as  an  appropriate  exercise  of  the  preven- 
tive jurisdiction  of  equity  to  enjoin  actions  of  ejectment  for 
the  purpose  of  confining  the  litigation  to  the  forum  in  which 
it  was  originally  begun.  An  injunction  has  therefore  been 
granted  to  restrain  ejectment  for  the  same  lands  for  the  re- 
covery of  which  plaintiff  in  ejectment  has  previously  filed  a 
bill  in  equity  which  is  still  pending-^**  And  pending  a  bill 
in  equity  to  estabish  a  will,  a  defendant  to  the  bill  and  heir 
at  law  of  the  testator  has  been  restrained  from  prosecuting 
an  action  of  ejectment  for  the  recovery  of  the  devised  estate.^''' 
While,  however,  it  is  proper  under  certain  circumstances  to 
enjoin  the  trial  of  an  action  of  ejectment  until  a  final  hear- 
ing upon  a  bill  in  equity,  the  injunction  should  not  be  so 
framed  as  to  prevent  defendant  from  using  his  deed  upon  the 
trial.-^  And  where,  pending  an  action  of  ejectment  to  re- 
cover lands,  defendant  files  a  bill  seeking  to  have  an  alleged 
invalid  mortgage,  through  which  the  ejectment  plaintiff  claims 
title,  set  aside  as  cloud  upon  the  title,  equity,  having  taken 
jurisdiction  for  that  purpose,  will  enjoin  the  prosecution  of 
the  action  of  ejectment  and  determine  the  entire  controversy.^** 

§420.  Cloud  upon  title;  equal  equities.  Actions  of  eject- 
ment may  also  be  enjoined  in  equity  when  the  relief  is  neces- 
sary for  the  purpose  of  preventing  a  cloud  upon  title.  Thus, 
the  owner  in  fee  of  real  property  may  restrain  the  prosecu- 
tion of  an  action  of  ejectment  by  a  claimant  under  a  sheriff's 
deed  which  vests  an  apparently  good  title  in  the  grantee, 
on  the  ground  that  the  sheriff's  deed  constitutes  a  cloud  upon 
the  title.^*^  Where,  however,  as  between  the  parties  to  the 
action  the  equities  are  equal,  an  injunction  will  be  withheld. 
Thus,  equity  will  not  on  behalf  of  a  purchaser  of  real  estate 

26  Bull  V.  Bodie,  Dick.,  1.  -^  Richardson    v.    Stephens,    122 

27  Edgecumbe     v.     Carpenter,     1     Ala.,   301,   25    So.,    39. 

Beav.,  171.  so  Sieman  v.  Austin,  33  Barb.,  9. 

28  Blizzard  v.  Nosworthy,  50  Ga., 
514. 


388  IN-JUNCTIONS.  [chap.  vr. 

who  has  given  his  bond  for  the  purchase  money,  enjoin  an 
action  of  ejectment  brought  by  an  innocent  purchaser  in  good 
faith  and  without  knowledge  of  complainant's  rights.  In  such 
case  the  equities  being  equal  the  parties  will  be  left  to  their 
remedy  at  law.^^ 

§  421.  Mistake  of  fact  ground  for  injunction.  A  mistake  of 
fact  may  sometimes  constitute  sufficient  ground  for  restrain- 
ing proceedings  in  ejectment.  And  where  on  a  sale  of  lands 
under  execution  against  judgment  debtors  in  possession,  the 
sheriff's  deed  by  mistake  omitted  a  portion  of  the  land,  an  in- 
junction has  been  allowed  to  restrain  the  judgment  debtors 
from  an  action  of  ejectment  to  recover  the  premises  from  an 
innocent  purchaser,  who  had  acted  in  good  faith  and  under 
the  impression  that  he  was  buying  the  whole.^-  So  if  by 
mutual  mistake  of  the  parties  the  description  of  land  in  a  con- 
veyance, under  which  plaintiff  in  ejectment  claims  title,  cov- 
ers a  much  larger  quantity  of  land  than  was  intended  to  be 
conveyed,  and  plaintiff  is  in  actual  possession  of  that  portion 
of  the  land  to  which  he  is  rightfully  entitled  under  the  con- 
veyance as  intended,  he  may  be  enjoined  from  further  prose- 
cuting his  action.^^  Where,  however,  through  the  mistake  of 
a  surveyor,  complainant  has  erected  his  building  a  few  inches 
across  the  line  and  upon  defendant's  premises,  he  will  not  be 
allowed  to  enjoin  defendant  from  prosecuting  an  action  of 
ejectment  for  the  recovery  of  the  strip  so  built  upon,  defendant 
having  no  knowledge  of  the  encroachment  when  the  building 
was  erected.^-^ 

§  422.  Multiplicity  of  suits.  The  prevention  of  a  multi- 
plicity of  suits  is  a  favorite  ground  for  the  jurisdiction  of 
equity  in  restraint  of  proceedings  at  law,  and  will  avail  as  well 
in  restraining  actions  of  ejectment  as  those  of  any  other  nature. 

31  l.IcFarlane  v.  Griffith,  4  Wash.  ^^  Bush   v.   Hieks,  60  N.  Y.,  298. 

C.  C,  585.  •"  Kirchner   v.    Miller,    39    N.    J. 

«2  DeRiemer      v.      Cantillon,      4  Eq.,  355. 
Johns.   Ch.,  85. 


CHAP.  VI.]  AFFECTING    REAL    PEOrERTY.  389 

Thus,  where  one  is  in  full  possession  of  land  with  complete 
legal  title,  though  not  all  appearing  of  record,  he  may  enjoin 
a  number  of  ejectment  suits  brought  against  him  as  to  a  por- 
tion of  the  premises,  since  the  question  is  the  same  as  to  all 
and  may  be  determined  by  a  single  suit  in  chancery,  thus 
avoiding  a  multiplicity  of  actions.^^  And  after  two  verdicts 
in  his  favor  in  ejectment,  complainant  has  been  allowed  an 
injunction.^s  But  a  distinction  is  to  be  observed  between  bills 
for  the  prevention  of  multiplicity  of  suits,  or  bills  of  peace, 
whose  object  is  the  suppression  of  useless  and  vexatious  liti- 
gation, and  cases  where  the  real  object  of  the  relief  sought  is 
the  consolidation  of  a  number  of  suits  of  like  nature,  since  in 
the  former  class  of  cases  courts  of  equity  may  properly  enjoin, 
but  in  the  latter  they  will  refuse  to  interfere.  Thus,  where  an 
injunction  was  asked  to  stay  proceedings  in  ninety-two  actions 
of  ejectment,  until  one  or  more  might  be  tried,  the  parties, 
pleadings,  title  and  testimony  being  the  same  in  all  the  cases, 
the  relief  was  refused,  the  real  object  sought  being  a  consoli- 
dation of  the  actions  which  a  court  of  law  might  properly 
grant."" 

§423.  Repudiation  of  infant's  contract.  An  injunction  will 
not  be  allowed  against  procedings  in  ejectment  brought  by 
the  owner  of  land  after  attaining  his  majority,  who  while  an 
infant  had  contracted  for  the  sale  of  the  land,  _  and  given  a 
bond  for  the  convej-ance,  but  had  repudiated  the  contract  on 
coming  of  age,  and  refused  to  ratify  the  sale,  even  though 
the  purchase  money  had  been  paid.^^ 

§  424.  Statute  of  limitations.  The  fact  that  an  action  of 
ejectment  is  barred  by  the  statute  of  limitations,  will  not  of 
itself  suffice  to  warrant  an  injunction  against  the  proceedings, 

35  Woods  V.  Monroe,  17  Mich.,  injunction  would  be  allowed 
238.  against  the  remaining  suits  after 

36  Leighton  v.  Leighton,  1  P.  verdict  obtained  in  several,  qicosre. 
Wms.,  671.  3s  Brawner   v.    Franklin,   4   Gill, 

37  Peters  v.  Prevost,  1  Paine  C.  463. 
C,  64.     Whether  in  such  case  the 


390  INJUXCTIONS.  [chap.  VI. 

where  the  parties  in  interest  have  been  incapacitated  from 
bringing  suit.  Thus,  ejectment  by  an  administrator  to  recover 
land  for  the  benefit  of  the  heirs  of  a  decedent  will  not  be  en- 
joined on  the  ground  that  the  statute  of  limitations  has  run, 
where  neither  of  the  heirs  has  been  in  a  condition  to  sue,  one 
of  them  being  won  compos  and  the  other  a  feme  covert.^^ 

§  425.  Rights  of  mortgagees.  Where  a  preliminary  injunc- 
tion has  been  granted  to  restrain  the  prosecution  of  an  action 
of  ejectment,  upon  the  ground  that  the  transaction  out  of 
which  plaintiff  in  ejectment  claims  to  derive  title  was  in  reality 
a  mortgage,  from  which  defendant  seeks  to  redeem,  and  files 
a  bill  for  that  purpose,  and  to  enjoin  the  proceedings  at  law, 
the  injunction  should  be  made  perpetual  on  the  right 
of  redemption  being  established,  and  it  is  error  if  the  court 
does  not  so  direct.^^  But  a  mortgagee  who  has  recovered  judg- 
ment in  ejectment  for  the  mortgaged  premises  will  not,  before 
a  hearing,  be  enjoined  from  proceeding  with  the  enforcement 
of  his  judgment.^^ 

§  426.  Parties  to  the  action.  As  regards  the  parties  who 
may  properly  enjoin  proceedings  in  ejectment,  it  may  be  ob- 
served that  the  right  to  the  relief  is  not  confined  to  those  who 
were  originally  joined  as  defendants  in  the  action,  but  it  may 
be  extended  to  others  who  are  subsequently  joined  as  de- 
fendants. And  a  defendant  in  ejectment  is  not  deprived  of 
his  right  to  relief  against  the  judgment  because  of  his  hav- 
ing come  into  the  ejectment  suit  after  it  was  begun,  by  pur- 
chasing the  interest  of  the  tenant  and  joining  with  him  in 
the  defense.^-  But  an  injunction  has  been  refused  when  sought 
to  restrain  the  execution  of  a  judgment  in  ejectment  upon  a 
l)ill  filed  by  a  landlord,  who  might  have  made  himself  a  de- 
fendant to  the  action  of  ejectment,  but  neglected  so  to  do.^* 

30  Fleming  v.  Collins,  27  Ga.,  494.         4-  Hackwith  i\  Damron.  1  Monr., 

40  Harbison  v.  Houghton,  41  111.,  235. 
522.  ^•'  Moses  v.  Lewis,  Jac,  502. 

<i  Todd  V.  Pratt,  1  Har.  &  .!.,  465. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  391 

§427.  Rights  of  tenants;  crops.  When  an  action  of  eject- 
ment is  brought  against  one  who  is  employed  merely  as  a 
clerk  or  agent  of  a  tenant  who  is  in  the  lawful  occupancy 
of  the  premises,  the  judgment  in  ejectment  obtained  in  such 
action  is  void  as  to  the  actual  tenant,  since  he  is  not  a  party 
to  the  suit.  He  may,  therefore,  maintain  a  bill  to  enjoin  the 
execution  of  a  writ  of  possession  under  such  judgment,  since 
an  action  against  the  sheriff  serving  such  writ  might  prove 
an  inadequate  remedy  for  the  loss  occasioned  the  tenant  in  be- 
ing turned  out  of  possession  before  the  expiration  of  his 
lease,  and  for  the  loss  of  his  crops.-*^  But  a  plaintiff  in  eject- 
ment, having  no  lien  upon  the  crops  grown  by  defendant  upon 
the  premises,  is  not  entitled  to  an  injunction  pendente  lite  to 
restrain  defendant  from  selling  or  disposing  of  such  crops. ^•'' 

§  428.  When  plaintiff  in  ejectment  allowed  to  proceed  to 
trial.  If  it  is  apparent  in  an  action  to  enjoin  a  suit  in  eject- 
ment that  there  is  no  defense  to  the  suit  at  law,  complainant's 
rights  being  only  equitable,  plaintiff  in  ejectment  will  ordi- 
narily be  permitted  to  proceed  as  far  as  trial  and  judgment, 
since  it  is  inequitable  to  delay  him  in  the  assertion  of  his  title 
any  farther  than  is  actually  necessary  for  the  protection  of 
complainant's  equities.'*'^  And  a  court  of  equity  will  not,  upon 
an  interlocutory  motion  in  advance  of  the  final  hearing,  re- 
strain a  defendant  from  setting  up  an  outstanding  term  in  de- 
fense of  an  action  of  ejectment  brought  by  complainant  to 
determine  his  title  to  the  estate  in  controversy.^^  But  the 
prosecution  of  an  action  of  ejectment  may  be  enjoined  at  the 
suit  of  one  who  is  in  possession  under  an  equitable  title,  the 
title  of  plaintiff  in  ejectment  being  void  and  constituting  a 
cloud  upon  complainant's  title.^^     And  the  relief    has    been 

44  Stewart  v.  Pace,  30  Ark.,  594.         4-  Barney   v.   Luckett,   1   Sim.   & 

45  Walker   v.   Zorn,   50    Ga.,    370.     St.,    419;    Northey   v.    Pearce,    lb., 

46  Ham  V.  Schuyler,  2  Johns.  Ch.,     420. 

140;    Douglass   v.   Walton,   Freem.  48  Michie  i\  Ellair,  54  Mich.,  518, 

Ch.,    347;     Hill    v.    Billingsly,    53  20  N.  W.,  564.     See  also  Apgar  v. 

Miss.,  111.    And  see  Wildy  v.  Bon-  Christophers,  10  Fed.,  857;  Crellin 

ny's  Lessee,  35  Miss.,   77.  v.  Ely,  13  Fed.,  420. 


392  INJUNCTIONS.  [CHAP.  VI. 

granted  in  behalf  of  the  equitable  owner,  who  has  been  in  pos- 
session for  many  years  claiming  the  fee,  against  persons  claim- 
ing under  a  conveyance  executed  for  the  purpose  of  defraud- 
ing creditors."*^ 

§  429.  Death  of  defendant  before  answer.  Under  the  prac- 
tice of  the  English  Court  of  Chancery,  when  an  injunction  had 
been  granted  against  an  action  of  ejectment,  and  defendant 
died  before  answer,  upon  the  application  of  the  heir  at  law 
plaintiff  in  the  injunction  suit  was  required  to  revive  the  suit 
within  a  given  time,  in  default  of  which  the  injunction  would 
be  dissolved.^*^ 

§  429  a.  Writ  of  possession  enjoined  until  compensation  for 

improvements.  AVhere  a  statute  provides  that,  after  judgment 
in  ejectment  against  the  defendant,  he  may  have  an  appraisal 
of  the  value  of  the  improvements  made  by  him,  and  that  the 
successful  party  shall  pay  him  the  amount  so  found  due,  an 
injunction  will  lie  to  restrain  the  execution  of  a  writ  of  pos- 
session until  such  payment  is  made.^^ 

49  McKibbin  v.  Bristol,  50  Mich.,        s"  Hill  v.  Hoare,  2  Cox,  50. 
319,  15  N.  W.,  491.  SI  Leighton  v.  Young,  3  C.  C.  A., 

176,  52  Fed.,  439,  18  L.  R   A.,  266. 


CHAP.  VI.]         AFFECTING  REAL  PEOPERTY.  393 


VII.    Landlord   and   Tenant. 

§  430.     Removal  of  crops  by  tenant. 

431.  When   tenant  allowed   injunction. 

432.  Equity  reluctant  to   enjoin   proceedings  for  eviction;    illustra- 

tions. 

433.  Removal  of  fixtures  and  furniture. 

434.  Waste   by  tenant    enjoined. 

435.  Nuisance  by  tenant  enjoined. 

436.  Restrictive    covenants    in    leases,    breach    enjoined. 

437.  Right  to   estovers. 

§  430.  Removal  of  crops  by  tenant.  The  preventive  jurisdic- 
tion of  equity  by  injunction  is  frequently  invoked  as  between 
landlord  and  tenant  for  the  better  protection  of  their  relative 
rights  in  the  demised  premises.  And  an  examination  of  the 
authorities  bearing  upon  this  branch  of  the  subject  discloses  a 
somewhat  liberal  exercise  of  the  jurisdiction  for  the  prevention 
of  waste  by  the  tenant,  or  his  improper  removal  of  the  produce 
or  crops  grown  upon  the  premises,  in  cases  where  the  legal 
remedies  are  inadequate  to  the  proper  protection  of  the  rights 
of  the  landlord.^  Thus,  a  tenant  of  premises  demised  from 
year  to  year  may  be  enjoined  from  removing  crops,  straw 
and  manure  when  such  removal  is  contrary  to  the  custom  of 
the  country.2  So  a  tenant  may  be  enjoined  from  disposing 
of  his  landlord's  cattle  upon  the  premises  without  consent  of 
the  landlord.^  And  where  a  tenant  from  year  to  year  on  the 
expiration  of  his  lease  proceeds,  contrary  to  the  custom  of  the 
country,  to  remove  hay,  straw,  fodder  and  other  articles,  the 

1  See  Walton  v.  Johnson,  15  72 ;  Douglass  v.  Wiggins,  1  Johns. 
Sim.,  352;  Pulteney  r.  Shelton,  5  Ch.,  435;  Thomas  v.  Jones,  1  Y.  & 
Ves.,  147;   Onslow  v.  ,  16  Ves.,     C.  C.   C,   510;   Lewis  v.  Christian, 


173;  Pratt  v.  Brett,  2  Madd.,  62 
Farrant  v.  Lovel,  3  Atk.,  723 
Baugher    v.    Crane,    27    Md.,    36 


40  Ga.,  187;  Parker  v.  Garrison,  61 
111.,  250. 

2  Pulteney    v.    Shelton,    5    Ves., 


Steward  v.  Winters,  4  Sandf.  Ch.,     147;   Onslow  v.  ,  16  Ves.,  173; 

587;  Frank  V.  Brunnemann,  8  West     Pratt  v.   Brett,   2   Madd.,   62. 
Va.,  462;  Maddox  v.  White,  4  Md.,        s  Musser  i\  Brink,  80  Mo.,  350. 


394  INJUNCTIONS.  [chap.  VI. 

produce  of  the  land,  a  decree  in  equity  having  already  appoint- 
ed a  receiver  of  the  rents  and  profits  of  the  estate,  a  peremp- 
tory injunction  may  be  issued  to  restrain  such  removal  by  the 
tenant,  although  he  was  not  a  party  to  the  proceedings  in 
equity  and  no  bill  has  been  filed  against  him.^  But  a  lessee 
will  not  be  restrained  from  removing  crops  out  of  which  he  is 
by  the  terms  of  his  contract  to  pay  the  rent  in  kind,  there 
being  no  averment  that  the  lessee  is  insolvent,  or  that  he  is 
without  other  property  out  of  which  an  execution  might  be 
satisfied.^  The  rule  is  otherwise,  however,  in  case  of  the  in- 
solvency of  the  tenant,*^  and  in  such  case  the  injunction  will 
be  allowed  to  prevent  the  removal  and  sale  of  the  crop  out  of 
which  the  rent  is  payable,  and  to  prevent  purchasers  from 
paying  the  tenant  therefor,  the  relief  being  granted  in  such 
case  because  of  the  inadequacy  of  the  remedy  at  law.' 
And  tenants  of  real  estate  on  shares,  who  by  their  bad  man- 
agement have  caused  great  loss  to  the  owner,  and  who  are  in- 
solvent, may  be  restrained  from  removing  their  share  of  the 
crops  from  the  premises  until  the  damages  sustained  by  the 
owner  can  be  ascertained,  the  insolvency  of  the  defendants 
rendering  the  remedy  at  law  less  efficacious  than  that  in 
equity .s  But  one  who  has  merely  a  naked  right  to  the  posses- 
sion of  real  estate,  without  any  legal  interest  therein,  as  an 
administrator,  will  not  be  allowed  to  enjoin  the  person  in  pos- 
session of  the  premises  from  disposing  of  the  crops  which  he 
has  raised  thereon,  the  beneficial  interest  being  wholly  in  him 
against  whom  the  restraining  power  of  the  court  is  sought  to 
be  exercised.'^ 

§  431.     When  tenant  allowed  injunction.     The  jurisdiction 
of  equity  by  injunction  is  also  invoked  for  the  protection  of 

4  Walton    V.    .Tohnson,    15    Sim.,  t  Parker  v.  Garrison,  61  III.,  250. 
352.  **  Lewis  v.  Christian,  40  Ga.,  187. 

5  Gregory   v.    Hay,    3    Cal.,    332;  «  Converse  v.  Ketchum,  18  Wis., 
Williams  r.  Green,  37  Ga.,  37.  202. 

'••  Schmitt  V.  Cassilius,  31  Minn., 
7,  16  N.  W.,  453. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  395 

the  rights  of  tenants.  While,  however,  it  is  held  that  equity- 
has  jurisdiction  at  the  suit  of  a  tenant  to  prevent  the  landlord 
from  breaking-  a  covenant  which,  though  not  made  with  the 
tenant,  will,  if  broken,  work  a  forfeiture  of  the  lease,  yet  where 
a  plain  construction  of  the  covenant  does  not  warrant  the  in- 
terpretation put  upon  it  by  complainant,  the  relief  will  not  be 
granted.^*'  Nor  will  proceedings  by  a  lessor  to  recover  posses- 
sion of  his  property  demised  under  a  lease  from  year  to  year 
be  enjoined  on  the  ground  that  the  lessee  has  made  valuable 
improvements  which  will  be  lost  to  him  in  case  of  his  dispos- 
session.i^  But  an  injunction  has  been  granted  until  the 
hearing  to  prevent  the  eviction  of  the  tenant  for  non-pay- 
ment of  rent,  upon  a  bill  for  an  accounting  between  the  tenant 
and  landlord  concerning  usury  alleged  to  have  been  extorted 
by  the  latter  in  making  the  lease,  the  tenant  offering  to  pay 
the  amount  actually  due.^-  And  where  the  owner  of  premises 
has  instituted  proceedings  for  the  removal  of  his  tenants,  he 
may  be  enjoined,  pending  such  proceedings,  from  interfering 
with  the  rights  of  the  tenants  by  threats  and  menaces  and  by 
driving  away  their  employees,  the  bill  averring  his  total  in- 
solvency.^ ^  So  when  the  title  to  real  estate  is  being  litigated 
by  a  proceeding  in  equity  to  set  aside  a  sale  upon  the  ground 
of  fraud,  the  defendant  in  that  litigation  may  be  restrained 
from  instituting  proceedings  before  a  justice  of  the  peace  upon 
a  landlord's  warrant  to  recover  possession  of  the  premises.  In 
such  a  case  relief  by  injunction  is  regarded  as  necessary  for 
the  prevention  of  a  multiplicity  of  suits,  all  matters  in  con- 
troversy being  susceptible  of  determination  in  the  original  suit 
in  equity.^  ^  And  a  mandatory  injunction  is  an  appropriate 
remedy  where  a  landlord  has  wrongfully  turned  off  his  tenant's 
supply  of  water.i^ 

10  Rogers  v.  Danforth,  1  Stockt.,  is  Walker  v.  Walker,  31  Ga.,  22. 
289.  i-t  Damschroeder  v.  Thias,  51  Mo., 

11  West  V.  Flannagan,  4  Md.,  36.  100. 

12  Spence  v.    Steadman,   49    Ga.,  is  Braiins    v.    Glesige,    130    Ind., 
133.  167,  29  N.  E.,  1061. 


396  INJUNCTIONS.  [chap.  VI, 

§432.  Equity  reluctant  to  enjoin  proceedings  for  eviction; 
illustrations.  The  doctrine  as  thus  discussed  and  the  authori- 
ties to  which  reference  has  been  made  in  its  support  indicate 
the  marked  reluctance  with  which  courts  of  equity  interfere 
by  injunction  with  legal  proceedings  instituted  by  a  landlord 
for  the  eviction  of  the  tenant  in  conformity  with  the  ac- 
customed procedure  for  such  purpose,  and  in  the  absence  of 
any  elements  of  fraud,  or  other  special  equities  warranting  the 
relief.  And  it  may  be  said,  generally,  that  in  the  absence  of 
any  special  circumstances,  such  as  those  above  enumerated, 
upon  which  the  jurisdiction  of  equity  may  attach,  an  injunc- 
tion will  not  lie  to  restrain  legal  proceedings  instituted  by  the 
landlord  for  the  eviction  of  the  tenant  or  for  the  non-payment 
of  rent,  all  such  questions  being  properly  determinable  in  the 
usual  course  of  proceedings  at  law.^°  Equity  will  not,  there- 
fore, enjoin  a  landlord  from  distraining  for  rent  due  from 
his  tenant  upon  the  ground  of  a  breach  of  contract  by  the 
landlord  in  failing  to  defend  an  action  for  the  enforcement 
of  a  mechanic's  lien  against  the  demised  premises,  by  means 
of  which  failure  the  tenant  claims  damages,  since  the  remedy 
at  law  for  such  a  breach  of  contract  is  ample.^'''  And  where 
a  statute  prohibits  the  staying  of  proceedings  in  an  applica- 
tion by  a  landlord  for  the  removal  of  a  tenant,  such  proceed' 
ings  will  not  be  enjoined  in  the  absence  of  fraud  or  collusion, 
and  the  tenant  Avill  be  left  to  assert  his  right  to  possession  in 
the  proceeding  for  removal.^ ^  Nor  does  the  destruction  of  the 
demised  premises  by  fire  afford  sufficient  ground  for  restraining 
proceedings  for  the  recovery  of  rent,  when  the  lease  contains 
no  provision  for  the  suspension  of  rent  in  the  event  of  fire.^^ 
And  in  an  action  by  the  tenant  to  restrain  his  landlord  from 

i«  Sherman  r.  Wright,  49  N.  Y.,  is  Sherman  r.  Wright,  49  N.  Y., 

Z27;     Leopold    r.   Judson,     75    111.,  227. 

536;   Hall  v.  Holmes,  42  Ga.,  179;  i9  Leeds    v.    Cheetham,    1    Sim., 

Huff  V.  Markhara.  70  Ga.,  284.  146. 

17  Leopold  r.  Judson,  75  111.,  536. 


CHAP.  VI.]  AFFECTIXG    REAL    PROPERTY.  397 

tearing-  clown  the  premises,  to  the  injury  of  the  tenant  in  his 
business,  it  has  been  held  sufficient  ground  for  refusing  relief 
that  the  tenant  did  not  aver  performance  of  the  covenants  and 
conditions  incumbent  upon  him  by  the  terms  of  the  lease.^o 
So,  upon  the  other  hand,  relief  by  injunction  will  be  denied 
the  landlord  in  cases  where  full  redress  may  be  had  at  law. 
And  the  fact  of  a  tenant  holding  over  after  the  expiratiom 
of  his  lease  will  not  w^arrant  relief  in  equity  by  injunction, 
when  no  reason  is  shown  why  resort  is  not  had  to  the  legal 
remedy  by  forcible  detainer  or  ejectment,  and  equity  will  not 
interfere  in  such  case  by  injunction  to  determine  the  rights; 
and  titles  of  the  parties,  but  w^ill  leave  them  to  be  determined' 
at  law.-i 

§  433.  Removal  of  fixtures  and  furniture.  The  question  of 
relief  by  injunction  to  prevent  the  removal  of  fixtures  from 
the  demised  premises  is  to  be  determined  by  the  test  so  fre- 
quently applicable  in  determining  whether  preventive  relief 
shall  be  granted,  namely,  the  adequacy  of  the  remedy  at  law. 
And  when  the  controversy  is  between  the  owner  of  the  prem- 
ises and  an  outgoing  tenant,  or  one  claiming  under  him,  a 
court  of  equity  wnll  not  entertain  jurisdiction  to  restrain  the 
removal  of  fixtures,  since  in  such  case  the  remedy  at  law  is 
regarded  as  ample. 22  Upon  the  other  hand,  the  court  may 
properly  enjoin  the  removal  of  fixtures  from  the  premises  upon 
a  bill  by  the  landlord  alleging  a  threatened  sale  by  the  sheriff 
under  execution  against  the  tenant,  such  an  injury  being  of 
an  irreparable  character  and  partaking  of  the  nature  of  waste.^^ 
So  where  a  tenant  has  built  a  substantial  addition  to  the  rear 
of  the  demised  premises  which  has  become  part  of  the  reality 
and  which  can  not  be  removed  without  serious  injury  to  the 
building  by  leaving  it  open  to  the  elements,  the  threatened  re- 

20  Johnston  v.  Glenn,  40  Md.,  200.         22  Hamilton    v.    Stewart,   59    111., 

21  Torrent  v.  Muskegon  Booming     330. 

Co.,  22  Mich.,  354.  23  Richardson  v.  Ardley,  38  L.  J. 

Ch.  N.  S.,  508. 


398  INJUNCTIONS.  [CIIAP.  VI. 

moval  of  the  structure  by  the  tenant  will  be  enjoined.^^  And 
where  fixtures  have  been  installed  by  a  tenant  upon  which 
a  balance  remains  due  for  the  work  of  installation,  the  land' 
lord  may  enjoin  the  removal  of  such  fixtures  by  the  claimant 
where  the  damages  would  be  difficult  of  ascertainment  and  the 
legal  remedy  is  consequently  inadequate.^^  So  in  an  action 
against  an  infant  to  set  aside  a  lease  of  a  furnished  house 
which  he  had  obtained  under  false  representations  that  he 
was  of  lawful  age,  it  has  been  held  proper  on  setting  aside 
such  lease  to  enjoin  the  infant  from  selling  or  parting  with  the 
furniture.2^ 

§  434.  Waste  by  tenant  enjoined.  The  commission  of  waste 
by  the  tenant  upon  the  premises  demised  is  also  sufficient 
ground  for  invoking  the  extraordinary  aid  of  equity  by  in- 
junction, whether  such  waste  consists  in  an  actual  abuse  or 
misuse  of  the  premises,  or  in  their  conversion  to  uses  repugnant 
to  the  terms  of  the  lease. -'^  Thus,  the  cutting  of  a  hole  by  the 
tenant  through  the  ceiling  or  roof  of  the  demised  premises,  for 
the  purpose  of  constructing  a  chimney,  constitutes  such  waste 
as  to  entitle  the  landlord  to  an  injunction.^^  And  a  ground 
landlord  is  entitled  to  the  aid  of  equity  by  injunction  to  pre- 
vent an  under-tenant  from  committing  waste.^'^  So  the  sowing 
of  land  with  hurtful  and  injurious  crops  is  regarded  as  such 
an  act  of  waste  as  to  justify  relief  by  injunction.^*^  And  upon 
analogous  principles  the  lessor  may  restrain  his  lessee,  or  those 
claiming  under  him  or  acting  by  his  authority,  from  convert- 
ing the  demised  premises  to  such  uses  as  are  inconsistent  with 

^4  Fortescue  v.  Bowler,  55  N.  J.  587;    Maddox  v.  White,  4  Md.,  72; 

Eq.,  741,  38  Atl.,  445.  Douglass  v.  Wiggins,  1  Johns.  Ch., 

a-iCamp   V.   Chas.    Thatcher    Co.,  435;  Brock  v.  Dole,  66  Wis.,  142,  28 

75  Conn.,  165,  52  Atl.,  952.  N.  W.,  334. 

ao  Lempiere  v.  Lange,  12  Ch.  D.,  -«  Brock  r.  Dole,  66  Wis.,  142,  28 

675.  N.  W.,  334. 

27Farrant  v.  Lovel,  3  Atk.,  723;  20  Farrant  v.  Lovel,  3  Atk.,  723. 

Baugher    v.    Crane,    27    Md.,    36;  so  pratt  v.  Brett,  2  Madd.,  62. 
Steward  v.  Winters,  4  Sandf.  Ch., 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  399 

the  terms  of  the  lease,  and  as  are  likely  to  result  in  such  in- 
jury to  the  owner's  rights  as  can  not  be  adequately  com- 
pensated by  proceedings  at  law^^^  But  a  landlord  who  is  not 
entitled  to  the  reversion  will  not  be  allowed  an  injunction 
against  the  commission  of  waste  by  the  removal  from  the  prem- 
ises of  a  building  erected  by  the  tenant.-''-  Nor  will  equity 
interfere  by  injunction  against  a  lessee  in  possession,  who  is 
using  the  premises  in  accordance  with  the  terms  of  the  lease, 
working  no  destruction  or  injury  to  the  reversion  other  than 
that  contemplated  and  authorized  by  the  lease  itself.^^  And 
defendant  in  possession  claiming  as  lessee  will  not  be  enjoined 
from  using  the  premises  for  purposes  not  illegal,  upon  the 
ground  that  complainant  has  not  authorized  the  lease,  but  com- 
plainant will  be  left  to  his  legal  remedy  to  recover  posses- 
sion.2* 

§  435.  Nuisance  by  tenant  enjoined.  It  is  also  a  fitting 
exercise  of  that  branch  of  the  jurisdiction  under  discussion 
to  interfere  for  the  prevention  of  such  acts  by  the  tenant  with 
reference  to  the  demised  premises  as  amount  to  a  nuisance. 
Thus,  lessees  of  a  building  who  have  rented  upon  represen- 
tations to  the  lessor  that  they  desired  the  building  for  oc- 
cupancy as  a  private  dwelling  may  be  enjoined  from  altering 
it  in  such  manner  as  to  carry  on  the  business  of  coach  mak- 
ing, the  house  being  in  danger  of  falling  from  such  altera- 
tions.-'^ And  where  the  lessees  of  a  bridge  use  it  in  a  manner 
expressly  forbidden  by  the  terms  of  their  lease,  to  the  great 
injury  of  the  lessors  in  the  rights  retained  by  them,  an  ap- 
propriate case  for  an  injunction  is  presented,  the  relief  being 
extended  in  such  case  upon  the  ground  that  the  lessees  are 

31  steward  v.   Winters,  4   Sandf.  32  Perrine  v.  Marsden,  34  Cal.,  14. 

Ch.,  587;   Maddox  v.  White,  4  Md.,  33  McDaniel    v.    Callan,    75    Ala., 

72;   Douglass  v    Wiggins,  1  Johns.  327. 

Ch.,  435.     See  also  Frank  v.  Briin-  34  Bodwell  v.  Crawford,  26  Kan., 

nemann,  8  West  Va.,  462;  Baugher  292. 

V.  Crane,  27  Md.,  36.  35  Bonnett  v.  Sdaler,  14  Ves.,  526. 


400  INJUNCTIONS.  [chap.  VI. 

guilty  of  maintaining  a  continuing  nuisance.^^  But  an  in- 
junction has  been  refused  which  was  sought  to  restrain  lessees 
from  the  erection  of  works  whereby  water  would  be  drawn 
off  and  used  in  a  manner  different  from  that  specified  in  the 
lease.^'^  So  it  is  held  that  the  lessor  can  not,  during  the  con- 
tinuance of  the  lease,  enjoin  his  lessee  from  darkening  win- 
dows and  obstructing  light  in  the  demised  premises,  when  it 
is  not  shown  that  the  injury  is  not  susceptible  of  compensa- 
tion in  an  action  for  damages.^^  So  a  landlord  can  not  en- 
join his  tenant  from  cutting  openings  in  floors  alleged  to  be 
contrary  to  the  provisions  of  the  lease,  where  no  substantial 
injury  results  and  complainant  has  an  adequate  remedy  for 
breach  of  contract  or  by  termination  of  the  lease  if  the  acts 
of  the  defendant  are  in  violation  of  its  terms.^^ 

§  436,  Restrictive  covenants  in  leases,  breach  enjoined.  The 
preventive  jurisdiction  of  equity  is  also  freely  exercised  for 
the  prevention  of  the  violation  of  negative  or  restrictive  cov- 
enants annexed  to  leases,  and  thus,  in  eft'ect,  enforcing  as 
against  the  tenant  a  specific  performance  of  the  contract  for 
the  benefit  of  the  lessor.  The  subject  is  fully  considered  else- 
where in  this  treatise,  and  it  is  not  proposed  to  state  here  the 
principles  in  detail  which  control  in  the  exercise  of  the 
jurisdiction  in  this  class  of  cases,  or  to  present  the  various  il- 
lustrations afforded  by  the  reported  decisions  of  the  applica- 
tion of  those  principles  to  the  cases  as  they  occur  in  practice. 
It  is  sufficient  to  say  in  general  terms  that  whenever,  under 
the  terms  of  a  lease,  the  lessee  is  restricted  to  the  use  of  the 
demised  premises  in  a  particular  manner  or  for  a  specified 
purpose,  a  violation  of  the  covenant  by  the  use  of  the  premises 
in  a  difi'erent  manner  or  for  another  i:)urpose  affords  ground 
for   the    interposition    of    ecjuity    l)y    injunction.      And    in    all 

•■<•'  Niagara   Bridge    Co.   v.   Great  following   Ingraliam  v.  Dunnell,  5 

Western  R.  Co.,  39  Barb.,  212.  Met.,  118. 

:i7  Sofiety  v.  Butler,  1  Beas.,  499,  -''^  Browne    v.    Niles,    165    Mass., 

reversing  S.  C,  lb.,  264.  276,  43  N.  E.,  90. 

3»  Atkins  V.  Chilson,  7  Met.,  398, 


OHAP.  VI.]  AFFECTING   REAL    PKOrERTY.  401 

such  cases  a  court  of  equity  is  regarded  as  the  appropriate 
forum  for  administering  relief,  the  jurisdiction  being  based 
in  part  upon  principles  analogous  to  those  which  govern  the 
equitable  remedy  of  specific  performance,  and  in  part  upon 
the  necessity  of  preventing  a  constantly  recurring  grievance 
resulting  from  the  continuous  breach  of  the  covenant,  which 
can  not  be  adequately  compensated  by  an  action  for  damages."*^ 

§  437.  Right  to  estovers.  Pending  a  trial  at  law  to  de- 
termine the  right  to  estovers,  an  injunction  may  be  allowed  to 
prevent  their  use  until  the  right  shall  be  adjusted,  the  relief 
being  extended  in  such  case  upon  principles  analogous  to  those 
governing  in  cases  of  waste.  Thus,  where  one  claims  the  right 
to  estovers  in  the  real  estate  of  another,  but  the  question  has 
been  decided  against  him  in  one  action  at  law,  and  another 
action  is  still  pending  to  determine  the  right,  he  may  be  en- 
joined from  taking  estovers.  The  jurisdiction  under  such 
circumstances  rests  on  the  necessity  of  avoiding  a  multiplicity 
of  suits  and  of  preventing  further  depredations  upon  the  es- 
tate until  the  right  can  be  fully  determined  at  law.'^i 

40  See   for   a   full    discussion   of  junctions    against    the    Breach    of 

this    subject,    chapter    XIX,    post,  Negative  Contracts." 

"Of  Injunctions  Pertaining  to  Con-  ■ii  Livington     v.     Livingston,     G 

tracts,"    subdivision    III,    "Of    In-  Johns.  Ch.,  497. 


26 


402  INJUNCTIONS.  [chap.  VI. 


VIII.   Homesteads. 

§  438.  Sale  of  homestead  under  execution  may  be  enjoined. 

439.  Limitations  upon  the   rule. 

440.  Further    limitations. 

441.  Exemption  under  "Homestead  Act"  of  Congress. 

§  438.    Sale  of  homestead  under  execution  may  be  enjoined. 

Questions  of  much  practical  importance  have  frequently  arisen 
under  the  legislation  of  the  different  states  exempting  from 
execution  real  estate  which  is  occupied  as  a  homestead  by  a 
judgment  debtor,  as  to  the  right  of  the  debtor  to  protection 
in  equity  against  a  sale  of  his  homestead  interest  under  ju- 
dicial process.  While,  as  will  be  seen,  the  courts  have  in 
some  instances  preferred  to  remit  the  judgment  debtor  to  the 
ordinary  legal  remedies,  they  have  generally  inclined  favor- 
ably to  the  exercise  of  their  preventive  jurisdiction  in  these 
cases.  Regarding  the  sale  of  the  homestead  interest  as  oper- 
ating as  a  cloud  upon  the  title  and  the  legal  remedies  being 
generally  inadequate  for  the  prevention  of  such  grievance,  re- 
lief in  equity  has  been  freely  extended  for  the  purpose  of  pre- 
venting an  enforced  sale  under  execution  of  premises  in  the 
actual  occupancy  of  the  debtor  as  a  homestead,  and  which 
are  protected  from  levy  and  sale  under  the  homestead  exemp- 
tion laws  of  the  state.^  And  an  interlocutory  injunction  may 
be  allowed  to  restrain  a  sale  of  lands  in  satisfaction  of  a  judg- 
ment when  complainant,  the  judgment  debtor,  claims  a  home- 

1  Tucker  v.  Kenniston,  47  N.  H.,  Roth  v.  Insley,  86  Cal.,  134,  24  Pac, 

267;  Irwin  v.  Lewis,  50  Miss.,  363;  853;  Robinson  v.  Hughes,  117  Ind., 

Judd  V.  Hatch,  31  Iowa,  491;  John-  293,     20     N.     E.,     220;     Hyser     v. 

son  V.   Griffin   Banking  and  Trust  Mansfield,  72  Vt.,  71,  47  Atl.,  105; 

Co.,    55    Ga.,    691;    Brown,    Adm'r,  Smith  v.  Zimmerman,  85  Wis.,  542, 

V.    Thornton,    47    Ga.,    474;    Colley  55  N.  W.,  956;  Pierson  v.  Truax,  15 

V.    Duncan,    47    Ga.,    668;    Lewton  Col.,    223,    25    Pac,    183;    Webb    v. 

V.  Hower,  18  Fla.,  872;  Gardner  v.  Hayner,    49    Fed.,    601.      See    also 

Douglass,    64   Tex.,   76;     Dascey   ??.  White  v.  Givens,  29  La.  An.,  571; 

Harris,  65   Cal.,   361,   4    Pac,   205;  Loeb  v.  McMahon,  89  111.,  487. 


CHAP.  VI.]         AFFECTING  REAL  PROPERTY.  403 

stead  interest  in  the  lands,  and  when  it  appears  to  the  court 
for  the  best  interests  of  all  parties  that  the  land  should  not 
be  sold  until  a  determination  of  the  controversy  as  to  the  right 
of  homestead.2  So  when  an  injunction  is  sought  for  the  pro- 
tection of  the  debtor's  homestead  from  sale  under  execution, 
and  the  remedy  at  law  is  less  adequate  and  complete  than  the 
remedy  in  equity,  the  relief  may  be  granted  until  the  case  can 
be  fully  heard  upon  its  merits.^  So  an  injunction  has  been 
allowed  in  limiiie  for  the  protection  of  minor  heirs  claiming 
a  homestead  right  in  real  estate  to  prevent  a  purchaser  under 
execution  from  taking  possession  until  a  full  hearing  could 
be  had,  and  the  rights  of  the  minors  be  fully  determined  upon 
final  decree.^  And  a  sale  of  the  homestead  by  an  assignee  in 
insolvency  of  the  husband  may  be  enjoined.® 

§  439.  Limitations  upon  the  rule.  Equity  will  not,  however, 
enjoin  a  sale  of  real  property  under  execution  which  is  claimed 
by  the  debtor  as  his  homestead  when  the  homestead  right  had 
not  attached  at  the  time  of  seizure.^  And  a  sale  under  execu- 
tion of  an  undivided  interest  in  real  estate  will  not  be  en- 
joined in  behalf  of  the  judgment  debtor  claiming  the  property 
as  exempt  from  seizure  under  the  homestead  laws  of  the 
state,  when  the  property  levied  upon  is  not  susceptible  of  be- 
ing a  homestead,  being  only  the  debtor's  share  or  interest  in 
the  lands  owned  by  others  jointly  with  him.'^  Nor  will  an  in- 
junction be  granted  in  this  class  of  cases,  when  full  and  com- 
plete relief  may  be  had  at  law.^  And  upon  a  bill  to  enjoin  a 
sale  under  execution  of  premises  in  the  actual  occupancy  of 
the  debtor  as  a  homestead,  it  is  not  sufficient  ground  for  re- 
lief to  allege   that   complainant   had   tendered   to   the   sheriff 

2  Johnson  v.  Griffin  Banking  and  «  Borron  v.  Sollibellos,  28  La. 
Trust  Co.,  55  Ga.,  691.  An.,  355. 

3  Brown,  Adm'r,  v.  Ttiornton,  47  "  Henderson  v.  Hoy,  26  La,  An., 
Ga.,  474.  156. 

4  Colley  V.   Duncan,  47  Ga.,  668.         «  Lowry  v.  Williams,  47  Ga.,  387. 
sDascey  v.  Harris,  65  Cal.,  361, 

4  Pac,  205. 


404  iNJUxcTioxs.  [chap.  yi. 

other  property  upon  which  to  levy  the  execution,  when  it  is 
not  shown  that  such  other  property  was  that  of  the  defend- 
ant in  execution.^ 

§  440.  Further  limitations.  The  homestead  right  being  n^- 
garded  as  only  a  right  pertaining  to  the  occupancy  of  the  prem- 
ises, the  exemption  from  sale  attaches  only  while  the  premises 
are  actually  occupied  as  a  homestead,  and  equity  will  not  in- 
terfere by  injunction  to  prevent  a  sale  of  the  property  after 
the  occupancy  has  ceased.  A  judgment  creditor  having  a  lien 
upon  the  lands  of  the  debtor  subject  to  the  homestead  rights 
of  the  latter  may,  therefore,  when  the  debtor  has  transferred 
his  homestead  to  a  third  person,  enforce  his  judgment  by  exe- 
cution and  sale  of  the  premises  so  conveyed,  and  no  relief  by 
injunction  will  be  allowed  to  prevent  such  sale.^^  So  the  re- 
lief will  not  be  allowed  to  restrain  a  sale  of  the  premises  under 
a  valid  lien  created  prior  to  their  occupancy  as  a  homestead. 
Thus,  an  injunction  w411  be  refused  which  is  sought  to  restrain 
a  sale  under  a  deed  jf  trust  of  real  estate  claimed  by  the 
wife  as  a  homestead,  when  the  premises  w'ere  not  so  used  or 
occupied  at  the  time  of  the  execution  of  the  deed  of  trust.  And 
the  fact,  in  such  case,  that  after  the  execution  of  the  deed 
of  trust  the  premises  are  improved  in  part  with  the  funds  of 
the  wife,  and  with  the  knowledge  of  the  beneficiaries  under 
the  deed  of  trust,  and  are  then  occupied  as  a  homestead,  will 
not  warrant  an  injunction  against  the  sale.^^  And  since  the 
assignment  of  a  homestead  estate  in  realty  can  neither  create 
any  superior  right,  nor  divest  any  equities  or  liens  upon  the 
estate,  an  injunction  will  not  be  granted  upon  the  application 
of  one  member  of  a  partnership  to  restrain  an  assignment  by 

» Alexander   v.   Mullen,   42   Ind.,  stead  as  a  mere  personal  right  of 

398.  occupancy  and  not  as  an  interest 

1"  Moore  r.  Granger,  30  Ark.,  574.  or  estate  which  can  be  conveyed. 

In   Van    Ratcliff  v.   Call,   72   Tex.,  the  decision  in  this  case  can  hard- 

491,  10  S.  \V.,  578,  the  contrary  doc-  ly  be  sustained  upon  principle. 

trine  was  laid  down.    Considering,  n  Chfpman  v.  McKinney,  41  Tex., 

however,  the  true  nature  of  a  home-  76. 


CHAP.  VI.]         AFFECTING  REAL  PROPEETY.  405 

a  copartner  to  his  wife  of  his  homestead  interest  in  real  estate 
which  is  alleged  to  be  subject  to  the  copartnership  debts.*^ 

§441.     Exemption  under  "Homestead    Act"    of    Congress. 

Notwithstanding  the  doctrine  as  above  stated  denying  relief 
against  a  sale  of  the  homestead  premises  after  a  sale  or  trans- 
fer by  the  debtor,  when  such  sale  is  made  under  a  judgment 
which  was  a  valid  lien  upon  the  premises,  subject  to  the  home- 
stead interest  before  the  transfer,  a  different  rule  prevails 
when  the  land  in  question  is,  under  the  law  creating  the  ex- 
emption, absolutely  exempted  from  the  satisfaction  of  all  prior 
debts,  so  that  no  lien  could  attach  to  the  land  on  account  of 
such  debts.  And  where,  under  the  act  of  Congress  known  as 
the  "Homestead  Act,'^^  one  has  entered  upon  and  obtained 
title  to  lands,  which  are  exempt  under  the  act  from  the  satis- 
faction of  any  debts  contracted  prior  to  the  issuing  of  the 
patent,  a  subsequent  purchaser  of  the  land  may  enjoin  the 
levy  of  an  execution  thereon  in  satisfaction  of  a  demand  which 
accrued  before  the  issuing  of  the  patent.  In  such  case  it  is 
held  that  Congress,  having  the  exclusive  power  under  the  con- 
stitution to  dispose  of  the  public  lands,  may  dispose  of  them 
subject  to  such  conditions  and  limitations  as  it  sees  fit  to  im- 
pose, and  the  condition  thus  imposed  will  be  enforced  by  in- 
junction for  the  protection  of  a  subsequent  purchaser. i* 

12  Newton    v.    Summey,    59    Ga.,  §    2296;    2  U.  S.  Comp.  Stat.  1901, 
397.  p.  1398. 

13  Act  of  Congress' approved  May         i*  Miller  v.  Little,   47   Cal.,  348. 
20,  1862,   U.   S.  Revised   Statutes, 


CHAPTER  VII. 

OF  INJUNCTIONS  PERTAINING  TO  MORTGAGES. 

I.     Injunctions  in  Behalf  of  Mortgagors §  442 

II.     Injunctions  in  Behalf  of  Mortgagees 462 

III.  Injunctions  Concerning  Third  Parties 469 

IV.  Waste  of   the   Mortgaged    Premises 478 

I.     Injunctions  in  Behalf  of  Mortgagors. 

§  442.  When  sale   under  mortgage  enjoined. 

443.  Tender   of   amount    due;    caveat   emptor. 

444.  Conditions  necessary  to  relief. 

445.  Payment  of  mortgage  debt  ground  for  injunction. 

446.  Parties  to  the  action. 

447.  Usury  as  ground   for   injunction. 

448.  Accounting  between  mortagor  and   mortgagee. 

449.  Mistake  of  fact;    deficiency  in  quantity  of  land. 

450.  Sale  of  equity  of  redemption;    homestead. 

451.  Insolvency  of  trustee;  notice  to  mortgagor. 

452.  When  relief  refused;  statute  of  limitations;  remedy  at  law. 

453.  Mortgagee  not  compelled  by  injunction  to  elect  remedy;   recov- 

ery of  deficiency  enjoined  for  fraud. 

454.  Unpropitious  time  of  sale  no  ground  for  Injunction. 

455.  Absolute  conveyance,  instead  of  mortgage,  when  sale  enjoined. 

456.  Equity  averse  to  enjoining  sale  under  power. 

457.  Sale  under  deed  of  trust  to  national  bank  enjoined. 

458.  Garnishee  proceedings  against  mortgagor. 

459.  When  perpetual  injunction  allowed  in  action  of  interpleader. 
4G0.  General  averments  of  misrepresentation  by  vendor  insufficient. 
461.  Dissolution  of  the  injunction. 

461a.  Sale  under  chattel  mortgage,  when  enjoined. 

§  442.  When  sale  under  mortgage  enjoined.  The  preventive 
aid  of  equity  by  injunction  is  frequently  invoked  in  behalf  of 
mortgagors  of  real  property  for  the  pnr-pose  of  preventing  a 
sale  of  the  mortgn<i'ed  premises  nnih'r  cireunistances  of  great 
hardship  or  irreparable  injury.     And  while  courts  of  equity 

406 


CHAP.  VII.]  PEKTAINIXG  TO   MORTGAGES.  407 

are  averse  to  interference  with  the  legal  rights  of  a  mortgagee, 
or  with  the  ordinary  remedies  for  the  enforcement  of  those 
rights,  they  will  sometimes  interfere  by  injunction  to  restrain 
proceedings  under  a  sale  of  mortgaged  premises  where  such 
proceedings  are  against  conscience  and  threaten  irreparable 
injury.'  Thus,  where  there  is  a  dispute  concerning  the  title  to 
real  estate  which  has  been  mortgaged  to  secure  the  purchase 
money,  a  sale  of  the  property  to  satisfy  the  mortgage  may  be 
enjoined  if  its  enforcement  would  be  against  conscience  and 
fair  dealing  and  would  entail  great  loss  on  the  mortgagors.- 
So  a  temporary  injunction  has  been  awarded  against  a  sale 
of  mortgaged  premises  under  a  power  of  sale  contained  in  the 
mortgage  of  which  complainant,  the  assignee  of  the  mortgagor, 
was  ignorant  when  he  purchased  the  premises,  the  mortgage 
never  having  been  recorded.^  And  where  property  has  been 
released  from  the  terms  of  a  mortgage,  but,  notwithstanding 
such  release,  it  is  afterward  sold  under  a  decree  in  foreclosure, 
a  perpetual  injunction  may  be  allowed  against  proceedings  at 
law  to  recover  possession  under  such  sale.^  So  equity  will  en- 
join a  sale  under  a  power  where  it  appears  that  the  mortgage 
was  without  consideration  and  did  not  secure  any  indebted- 
ness, even  though  it  was  executed  by  plaintiff  for  the  purpose 
of  defrauding  his  creditors.^  And  it  has  been  held  that  a  sale 
under  a  mortgage  given  to  secure  the  performance  of  an  il- 
legal contract  may  be  enjoined.^ 

1  High      Mfg.     Co.    V.    Grier,    4  gage,  see  Macleod  v.  Jones,  24  Ch. 

Jones    Eq.,    132;    Pierson    v.   Ryer-  D.,  289. 

son,  1   McCart.,   181 ;    Piatt  v.   Mc-  ^  High    Mfg.     Co.     r.     Grier,     4 

Clure,    3    Woodb.    &    M.,    151;    Mc-  Jones  Eq.,  132. 

Galley  v.  Otey,  90  Ala.,  302,  8  So.,  s  Piatt   v.   McClure,   3   Woodb.   & 

157.        See    Brown    v.    Cherry,    56  M.,  151. 

Barb.,  635;  S.  C,  38  How.  Pr.,  352.  4  pierson  v.  Ryerson,  1  McCart, 

As  to  the  terms  upon  which  an  in-  181. 

junction    may    be    granted    to    re-  ■'''  Devlin  v.  Quigg,  44  Minn.,  534, 

strain  a  sale  by  a  mortgagee,  who  47  N.  AV.,  258,  10  L.  R.  A.,  665. 

was  the  solicitor  of  the  mortgagor  «  Basket  v.  Moss,  115  N.  C,  448, 

at  the   time  of  making  the  mort-  20  S.  E..  733,  48  L.  R.  A.,  842,  44 

Am.  St.  Rep.,  463. 


408  .   ixJuxcTioxs.  [chap.  mi. 

§  443.  Tender  of  amount  due ;  caveat  emptor.  But  a  sale 
of  property  under  a  deed  of  trust  will  not  be  enjoined  when 
complainant  admits  by  his  bill  that  a  portion  of  the  debt  se- 
cured by  the  deed  of  trust  is  justly  due,  but  makes  no  tender 
of  such  amount.  He  who  would  have  equity  must  first  do 
equity,  and  in  the  absence  of  any  offer  on  the  part  of  the  com- 
plainant to  pay  the  amount  which  he  admits  to  be  due,  he  is 
entitled  to  no  consideration  in  a  court  of  equity.'''  And  where 
it  is  sought  to  restrain  a  sale  of  land  under  a  deed  of  trust 
on  the  ground  that  the  deed  was  executed  to  secure  the  pay- 
ment of  a  portion  of  the  purchase  money  of  certain  personal 
property  purchased  by  complainant  under  a  false  impression 
as  to  its  character  and  value,  there  being  no  allegations  of  war- 
ranty or  of  false  and  fraudulent  representations  in  the  original 
bargain,  it  is  held  that  an  injunction  will  not  lie.  The  doctrine 
of  caveat  emptor  applies  to  such  a  sale,  and  in  the  absence  of 
fraud  and  deceit  the  purchaser  is  not  entitled  to  relief  in 
equity.^ 

§  444,  Conditions  necessary  to  relief.  It  may  be  asserted  as 
a  general  rule  that  equity  will  not  interfere  by  injunction  to 
prevent  the  foreclosure  of  a  mortgage  unless  it  is  shown  that 
great  and  irreparable  injury  is  likely  to  result,  or  unless  com- 
plainant shows  himself  entitled  to  more  speedy  relief  than  may 
be  had  by  the  slower  process  of  courts  of  law\^  Nor  will  pro- 
ceedings under  a  foreclosure  decree  be  restrained  upon  grounds 
which  might  have  been  urged  in  defense  of  the  foreclosure 
suit.^*^  And  to  warrant  the  exercise  of  the  jurisdiction  mere 
general  statements  or  opinions  of  complainant  as  to  the  in- 
jury likely  to  ensue  if  the  proceedings  are  left  unrestrained 
will  iK)t  suffice;  facts  must  be  stated  and  not  conclusions  or 

"  Stringham   v.   Brown,    7    Iowa,  » Montgomery     v.     McEwen,     9 

33;    Sloan  v.  Coolbaugh,  10   Iowa,  Minn.,  103.    See  also  Security  Loan 

31;  Casady  v.  Bosler,  11  Iowa,  242.  Association  r.  Lake,  69  Ala.,  456. 

And  see  McCulla  r.  Beadleston,  17  i"  Board  of  Education  v.  Frank- 

R.  I.,  20,  20  At].,  11.  lin,  61  Ga.,  303. 

s  Street  v.  Rider,  14  Iowa,  506. 


CHAP.  YII.]  PERTAIXIXG  TO  MORTGAGES.  409" 

inferences  from  those  facts.^^  -Thus,  a  general  allegation  in 
the  bill  that  the  foreclosure  would  materially  injure  and  em- 
barrass complainant  in  his  right  is  not  sufficient  to  warrant 
the  relief.^-  Nor  is  it  sufficient  to  allege  that  complainant 
does  not  owe  the  note  described  in  the  mortgage,  but  he  must 
set  forth  specifically  the  equities  upon  which  he  relies  to  en- 
join the  sale.^^  So  it  is  held  that  the  fact  that  notes  secured 
by  a  deed  of  trust  are  in  suit,  and  that  their  validity  is  ques- 
tioned, does  not  warrant  an  injunction  against  sale  under  the 
deed  of  trust.^^  And  the  fact  that  the  mortgagor  has  un- 
liquidated demands  against  the  mortgagee  which  he  desire  to 
set  off  against  the  indebtedness  secured  by  the  mortgage  will 
not  warrant  an  injunction  against  a  sale  under  a  power  con- 
tained in  the  mortgage,  since  the  rule  is  regarded  as  well 
settled  that  unliquidated  damages  can  not  be  pleaded  by  way 
of  set-oft'  to  proceedings  in  equity.^  ^ 

§  445.    Payment  of  mortgage  debt  ground   for   injunction. 

Payment  of  the  mortgage  indebtedness  affords  frequent  ground 
of  application  for  preventive  relief  against  a  threatened  sale 
.or  foreclosure  of  the  mortgaged  premises.  And  while  it  has 
been  held  that  payment  does  not  of  itself  warrant  an  injunc- 
tion against  a  sale  under  the  mortgage,  when  there  is  no 
allegation  of  the  mortgagee's  insolvency,  or  of  some  other  mat- 
ter bringing  the  case  within  some  recognized  head  of  equity 
jurisdiction,^^  yet  the  better  doctrine  and  that  having  the  clear 

"  Foster    v.    Reynolds,    38    Mo.,  «  Foster    v.    Reynolds,    38    Mo.,. 

553;     Montgomery    v.    McEwen,    9  553. 

Minn.,  103.  "  Gibson's  Heirs  v.  Niblett,  Sm. 

^-  Montgomery     v.     McEwen,     9  &  M.  Ch.,  278. 

Minn.,  103.     And  it  is  held  in  this  is  Frieze  v.  Chapin,  2  R.  I.,  429. 

case    that    the   fact   that   the   acts  And  see  Robertson  v.  Hogsheads,  3 

complained  of  would,  if  allowed  to  Leigh,     667;     Koger    v.     Kane,     5 

proceed,  result    in    clouding    com-  Leigh,  606;  McCulla  v.  Beadleston, 

plainant's  title  will  not  authorize  17  R.  L,  20,  20  Atl.,  11. 

an  injunction.    But  upon  this  point  is  Waterman  r.  Johnson,  49  Mo... 

the  case  appears   to   be   overruled  410. 
by  Conkey  v.  Dike,  17  Minn.,  457: 


410  INJUNCTIONS.  [chap.  VII. 

weight  of  authority  undoubtedly  is  that  a  sale  or  foreclosure 
after  the  mortgage  indebtedness  has  been  paid  or  satisfied 
affords  sufficient  ground  for  equitable  interference  by  injunc- 
tion.^" And  a  mortgagor  who  has  paid  the  debt  in  full  and 
who  afterward  conveys  the  premises  with  covenants  of  war- 
ranty may  properly  invoke  the  aid  of  equity  to  restrain  pro- 
ceedings by  the  mortgagee  to  foreclose  the  mortgage  which  has 
been  satisfied,  and  he  will  not  be  required  to  wait  until  suit 
by  his  grantee  upon  the  covenants  of  warranty  before  obtain- 
ing relief.^ ^  So  it  is  proper  to  enjoin  a  sale  of  real  estate  under 
a  deed  of  trust  in  the  nature  of  a  mortgage  until  the  final 
hearing  of  the  cause,  upon  a  bill  alleging  payment  of  the  in- 
debtedness, when  defendants  admit  part  payment,  and  when  no 
injury  can  result  by  continuing  the  injunction  until  the  hear- 
ing, while  great  injury  might  result  to  complainant  by  per- 
mitting the  sale.i^  And  when  a  mortgagee  in  possession  of 
the  mortgaged  premises  has  been  fully  paid,  an  injunction  will 
lie  to  prevent  him  from  ejecting  tenants  from  the  lands. ^^  So 
upon  a  bill  to  redeem,  the  mortgagor,  having  tendered  pay- 
ment of  the  amount  due,  may  restrain  the  mortgagee  from 
proceedings  at  law  for  an  eviction.-^  But  in  the  case  of  a 
chattel  mortgage  it  is  held  that  payment  does  not  warrant  an 
injunction  against  foreclosure  when  the  mortgagor  is  in  pos- 
session, since  such  foreclosure  would  only  constitute  a  trespass, 
for  which  adequate  relief  might  be  had  at  law.-- 

§  446.  Parties  to  the  action.  As  regards  the  parties  to  the 
action  in  cases  of  this  nature,  it  is  held  that  when  a  bill  is 
brought  by  an  administrator  to  enjoin  a  sale  of  real  estate 

1' Hubbard    v.    Jasinski,    46    111.,  ^  Dockrey  v.   French,   69   N.   C, 

160;    Dockrey  v.  French,  69  N.  C,  308. 

308;    Robinson    v.    Maguire,    9    Ir.  2'»  Robinson  i'.  Maguire,  9  Ir.  Eq., 

Eq.,  268;  Pierson  v.  Ryerson,  1  Me-  268. 

Cart.,  181.     And  see  Greenwade  v.  21  Lindsay  v.  Matthews,  17  Fla., 

McCormack,  79  Mo.,  13.  575. 

'**  Hubbard    v.    Jasinski,    46    111.,  22  Normandin     r.      Mackey,      38 

160.  Minn.,  417. 


CHAP.  Vir.]  PERTAINING  TO  MORTGAGES.  411 

under  a  deed  of  trust  in  the  nature  of  a  mortgage,  upon  the 
ground  that  the  indebtedness  had  been  paid  by  the  intestate 
in  his  lifetime,  the  heirs  are  necessary  parties,  since  they  are 
the  owners  of  the  real  estate  and  directly  interested  in  the 
result  of  the  controversy.^^ 

§  447.  Usury  as  ground  for  injunction.  Relief  in  equity  is 
also  granted  against  the  foreclosure  or  sale  of  mortgaged  prem- 
ises upon  the  ground  of  usury  in  the  indebtedness  secured  by 
the  mortgage,  and  an  injunction  is  regarded  as  the  appropriate 
remedy  in  such  cases  until  an  accounting  can  be  had  of  the 
amount  of  interest  legally  due.-^  And  equity  will  enjoin  pro- 
ceedings for  the  foreclosure  and  sale  of  mortgaged  premises 
under  mortgages  given  to  secure  usurious  interest,  when  com- 
plainant has  paid  the  principal  indebtedness  with  legal  interest 
in  fuU.-'^  So  when  the  amount  due  under  the  mortgage  is  un- 
ascertained, the  bill  alleging  usury  in  the  transaction,  and  an 
action  is  pending  by  the  mortgagor  against  the  mortgagees  for 
damages  incurred  by  reason  of  their  failure  to  comply  with 
their  agreement  as  to  the  consideration  for  the  mortgage,  a 
proper  case  is  presented  for  an  injunction  until  the  balance 
actually  due  under  the  mortgage  can  be  properly  determined 
by  the  court.-*^  The  mortgagor,  however,  will  not  be  allowed 
to  enjoin  the  enforcement  of  the  mortgage  upon  the  ground 
of  usury  when  there  is  ample  remedy  at  law.-^  Nor  will  a 
sale  of  mortgaged  premises  be  enjoined  upon  the  ground  of 
usurious  transactions  between  the  original  parties,  as  against 
a  lona  fide  purchaser  of  the  mortgage  without  notice  of  such 
usury.28  And  in  conformity  with  the  universal  maxim  of 
equity,  that  he  who  would  have  equity  must  first  do  equity,  an 
injunction  will  not  be  granted  against  a  sale  of  real  estate 

23  Stewart  v.  Jackson,  8  West  25  Waite  v.  Ballou,  19  Kan.,  601. 
Va.,  29.  26  Purnell  v.  Vaughan,  77  N.  C, 

24  Hooker    v.    Austin,    41    Miss.,     268. 

717;  Waite  V.  Ballou,  19  Kan.,  GOl.         27  Alston    v.    Wheatley,    47    Ga., 

See  also  Purnell  v.  Vaughan,  77  N.     646. 

C,  268.  2s  Gantt  v.  Grindall,  49  Md.,  310. 


412  iNJUNCTiaxs.  [chap.  vii. 

under  a  mortgage  because  of  usury,  when  the  mortgagor  does 
not  pay  or  tender  the  principal  indebtedness  and  the  interest 
legally  due.-^  But  an  important  distinction  is  to  be  observed 
in  the  application  of  this  rule  between  cases  where  the  relief 
is  sought  against  the  mortgage  as  an  entirety,  and  cases  where 
it  is  only  sought  to  enjoin  the  foreclosure  as  to  the  amount  of 
the  usurious  interest.  And  while  the  doctrine  is  well  estab- 
lished that  in  an  action  to  annul  or  enjoin  the  enforcement 
of  the  instrument  as  an  entirety,  complainant  must  first  tender 
payment  of  the  amount  legally  due,  it  does  not  apply  to  an 
action  to  enjoin  the  foreclosure  to  the  extent  of  the  usury 
alone,  without  affecting  the  remainder  of  the  debt.  A  bill, 
therefore,  praying  an  injunction  as  against  the  usury  only,  is 
not  demurrable  because  it  does  not  tender  the  balance  of  the 
indebtedness.^'^ 

§  448.  Accounting  between  mortgagor  and  mortgagee.  The 
state  of  the  account  between  mortgagor  and  mortgagee  is 
sometimes  important  in  determining  the  necessity  for  preven- 
tive relief  against  a  foreclosure.  And  when  there  have  been 
long  and  complicated  dealings  between  the  parties,  extending 
over  a  period  of  several  years,  and  the  mortgagor  files  a  bill 
for  an  accounting,  the  mortgagee  may  be  restrained  from  sell- 
ing under  a  power  of  sale  contained  in  the  mortgage  until 
the  final  hearing  upon  the  accounting.  In  such  a  case,  there 
being  a  controversy  between  the  parties  as  to  the  amount 
actually  due  under  the  mortgage,  it  will  not  be  determined 
upon  affidavits  on  the  motion  for  an  injunction,  but  will  be 
left  until  the  hearing,  and  the  injunction  in  the  meantime  will 
be  retained.^i     And  it  is  proper,  in  such  cases,  to  grant  the 


20  Tooke  V.  Newman,  75  111.,  215 
Powell  V.  Hopkins,  38  Md.,  1 
Walker  v.  Cockey,  38  Md.,  75 
Manning  v.  Elliott,  92  N.  C,   48 


ley  r.  Wood,  97  Ga.,  755,  25  S.  E., 
499. 

30  Haggerson  r.  Phillips,  37  Wis., 
364. 


Cook  V.  Patterson,  103  N.  C,  127,  :"  Capehart  r.  Biggs,  77  N.  C, 
9  S.  E.,  402;  Carver  r.  Brady,  104  261;  Farmers  S.  &  B.  &  L.  Assn. 
N.    C,   219,   10    S.   E.,   565;    Brant-     r.  Kent,  117  Ala.,  624.  23  So.,  757. 


'CHAl'.  VII. J        PERTAINING  TO  MORTGAGES.  413 

injunction  upon  condition  that  the  mortgagor  pay  into  court 
the  amount  which  he  admits  to  be  due.^^  j^^id  a  mortgagee 
who  has  sold  property  mortgaged  to  him  as  security  for  a  note 
may  be  enjoined  from  proceeding  upon  his  judgment  until  an 
accounting  can  be  had  between  the  parties.-^-''  But  it  is  not 
sufficient  ground  for  enjoining  a  sale  of  the  premises  to  allege 
that  complainant  has  made  payments  upon  the  mortgage  in- 
debtedness, that  he  has  an  unliquidated  account  against  the 
holders  of  that  indebtedness,  and  that  complainant  is  advised 
that  a  less  rate  of  interest  than  that  claimed  is  actually  due, 
when  no  dates,  amounts  or  other  data  are  alleged  from  which 
the  court  can  form  an  opinion  as  to  the  real  facts.^^ 

§  449.  Mistake  of  fact ;  deficiency  in  quantity  of  land.  A 
mistake  of  fact  in  the  drafting  of  a  mortgage,  whereby  it  is 
made  to  embrace  a  larger  quantity  of  land  than  was  intended, 
would  seem  to  be  sufficient  ground  for  enjoining  a  sale  under 
the  mortgage,  until  a  final  hearing  can  be  had  upon  the  ques- 
tion of  its  reformation.^-*  And  when  a  mortgage  is  given  under 
a  mutual  mistake  of  both  parties,  the  mistake  being  both  as 
to  the  law  and  the  facts,  it  is  proper  to  enjoin  a  sale  under 
the  mortgage,  and  to  retain  such  injunction  until  a  hearing 
upon  a  bill  to  set  aside  the  mortgage.^^  But  equity  will  not 
enjoin  a  sale  of  lands  under  a  deed  of  trust  given  to  secure 
the  purchase  money,  because  of  a  deficiency  in  quantity,  in 
the  absence  of  any  allegations  of  fraud  or  misrepresentation 
upon  the  part  of  the  vendors,  and  in  the  absence  of  any  aver- 
ment of  mutual  mistake  between  the  parties  concerned.^"     And 

See  alsa  Purnell  r.  Vaughan,  77  N.  33  Craf  t    v.    Bullard,    Sm.    &    M. 

C,   268;    Craft    v.   Bullard,   Sm.   &  Ch.,  366. 

M.  Ch.,  366;    Tillery  p.  Wrenn,  86  s^  Plowman     v.     Satterwhite,     3 

N.  C,  217;    Bridgers  v.  Morris,  90  Tenn.  Ch.,  1. 

N.    C,    32;    Gooch   v.  Vaughan,  92  35  Smith    v.    Mechanics    Building 

N.    C,    610.      See    also    Hinson  v.  &  Loan  Association,  73  N.  C,  372. 

Brooks,   67  Ala.,    491.  3g  Ponton   v.   McAdoo,   71   N.    C, 

32  Pritchard  v.  Sanderson,  84  N.  101. 

C,   299 ;    Harrison   r.    Bray,    92  N.  s-  Reed  v.  Patterson,  7  West  Va., 

C,  4SS.  263. 


414  INJUNCTIONS.  [chap.  VII. 

a  purchaser  of  real  estate  who  mortgages  it  back  to  his  vendor 
to  secure  the  purchase  money  can  not  enjoin  the  enforcement 
of  the  mortgage  because  of  a  deficiency  in  the  amount  of  the 
real  estate  conveyed,  when  the  conveyance  is  made  by  metes 
and  bounds,  since  this  method  of  description  would  control 
any  expressions  in  regard  to  the  measurement.^^ 

§450.  Sale  of  equity  of  redemption;  homestead.  The  mort- 
gagor's equity  of  redemption  being  peculiarly  the  result  of 
the  doctrines  of  equity,  and  never  having  been  recognized  by 
courts  of  law  until  forced  upon  their  recognition  by  the  place 
which  had  been  given  it  in  English  jurisprudence  by  the  High 
Court  of  Chancery,  courts  of  equity  have  at  all  times  manifested 
an  extreme  jealousy  in  protecting  this  equity.  And  for  the 
purpose  of  better  securing  it  to  the  mortgagor,  the  mortgagee 
may  be  restrained  from  proceeding  at  law  to  sell  the  equity  of 
redemption  in  satisfaction  of  the  mortgage  debt.^^  But  a  sale 
of  the  mortgaged  premises  under  a  decree  in  foreclosure  will 
not  be  enjoined  upon  the  ground  that  the  premises  are  oc- 
cupied by  the  mortgagor  as  a  homestead,  when  that  defense 
was  equally  available  to  the  mortgagor  in  the  foreclosure  pro- 
ceeding, no  fraud  being  shown  in  the  conduct  of  the  mortgagee, 
and  no  new  matter  being  presented  as  ground  for  the  relief.'*^ 

§451.  Insolvency  of  trustee;  notice  to  mortgagor.  Insol- 
vency of  the  trustee  in  a  deed  of  trust  in  the  nature  of  a  mort- 
gage is  not,  of  itself,  sufficient  reason  for  enjoining  him  from 
selling  under  the  power  contained  in  the  deed,  since  the  court 
will  presume,  in  the  absence  of  evidence  to  the  contrary,  that 
the  trustee  will  faithfully  perform  his  trust.*^  But  where  the 
power  of  sale  over  mortgaged  premises  was  in  a  trustee,  who 
was  proceeding  to  sell  without  having  apprised  the  mortgagor 
(if   his   intention,   an   injunction   was   granted   to   prevent  the 

•t'*  Whitney  v.  Saloy,  26  La.  An.,  Green  Ch.,  220;  Van  Mater  r.  Con- 
40.  over,  3  C.  E.  Green,  38. 

•'<»  Severns  v.  Woolston's  Ex'rs,  3         ■»•'  Michel  v.  Sammis,  15  Fla.,  308. 

41  Tooke  V.  Newman,  75  111.,  215. 


CHAP.  VII.]  PERTAINING  TO  MORTGAGES.  415 

sale,  upon  the  ground  that  it  was  the  duty  of  the  trustee  to 
notify  both  parties  of  the  sale,  so  that  each  might  take  steps 
to  secure  an  advantageous  sale.'*^ 

§452.  When  relief  refused;  statute  of  limitations;  remedy 
at  law.  A  sale  under  a  trust  deed  will  not  be  enjoined  when 
it  appears  by  complainant's  own  showing  that  no  sale  would 
be  made  if  he  should  pay  what  he  admits  to  be  due,  and  what 
he  avers  his  ability  and  willingness  to  pay.'*^  Nor  will  a  mort- 
gagor be  allowed  an  injunction  against  a  sale  under  the  mort- 
gage, when  it  is  admitted  that  the  debt  is  due  and  unpaid, 
merely  because  of  an  adverse  claim  of  title  to  the  lands  of 
which  he  was  ignorant  at  the  time  of  making  the  mortgage, 
and  because  such  adverse  claimant  has  brought  an  action  to 
assert  his  title,  by  reason  of  which  the  mortgagor  is  em- 
barrassed and  prevented  from  paying  the  mortgage  indebted- 
ness.^* And  a  sale  of  real  estate  under  a  deed  of  trust  will 
not  be  restrained  upon  the  ground  that  the  note  secured  by 
the  deed  of  trust  is  barred  by  the  statute  of  limitations,  the 
indebtedness  being  justly  due,  since  he  who  would  have  equity 
must  himself  do  equity.*^  Nor  will  such  a  sale  be  enjoined 
where  the  fact  that  the  statute  of  limitations  has  run  can  be 
set  up  in  defense  to  an  ejectment  suit  brought  by  the  pur- 
chaser at  the  mortgage  sale,  the  mortgagor  being  in  posses- 
sion.*^ 

§453.  Mortgagee  not  compelled  by  injunction  to  elect 
remedy;  recovery  of  deficiency  enjoined  for  fraud.     Since  a 

42  Anon.,  6  Madd.,  1st  American  *5  Goldfrank  v.  Young,  64  Tex., 
edition,  15.  But  it  does  not  appear  432.  As  to  the  effect  of  a  decree 
by  the  case  as  reported  that  the  by  consent  of  the  parties  dismiss- 
trustee  was  empowered  by  the  ing  a  bill  to  enjoin  a  sale  under  a 
terms  of  the  Instrument  to  sell  deed  of  trust,  upon  an  application 
without  such  notice.  to  enjoin  such  sale  in  a  subsequent 

43  Shonk  V.  Knight,  12  "West  Va.,  suit  between  the  same  parties,  see 
667.  Brower  v.   Buxton,  101  N.  C,  419, 

44  North    Carolina   G.   A.    Co.   v.  8  S.  E.,  116. 

North  Carolina  O.  D.  Co.,  73  N.  46  Hutaff  v.  Adrian,  112  N.  C, 
C,  468.  259,  17  S.  E.,  78. 


■416  INJUNCTIONS.  [chap.  VII. 

mortgagee  has  his  election  to  pursue  either  the  legal  remedy 
for  the  enforcement  of  the  debt,  or  the  quitable  remedy  for 
the  foreclosure  of  the  mortgage,  or  both  at  the  same  time,  he 
can  not  be  compelled  by  injunction  to  elect  which  remedy 
he  will  adopt.  Where,  therefore,  he  holds  a  bond  secured  by 
mortgage,  he  will  not  be  enjoined  from  proceeding  at  law 
upon  the  bond  for  the  purpose  of  compelling  him  to  resort  to 
his  remedy  upon  the  mortgage.'*''  Nor  will  a  mortgagee  be 
enjoined  from  suing  at  law  upon  the  covenant  for  the  money 
due,  merely  because  he  has  exercised  the  power  of  sale  con- 
tained in  the  mortgage  to  the  extent  of  entering  into  a  con- 
tract to  sell  a  portion  of  the  premises,  which  contract  has 
not  yet  been  consummated,  even  though  the  contract  price  is 
greater  than  the  mortgage  debt.^^  But  fraudulent  conduct 
on  the  part  of  the  mortgagee,  in  preventing  competition  at  a 
sale  under  foreclosure,  may  warrant  an  injunction  against  pro- 
ceedings at  law  to  recover  a  deficiency.  Thus,  when  the  parties 
interested  in  a  foreclosure  proceeding  enter  into  a  combination 
to  pevent  a  sale  at  the  usual  competition  to,  the  highest  bidder, 
and  by  their  interference  dissuade  purchasers  from  bidding 
at  the  sale,  they  are  estopped  by  such  conduct  from  bringing 
an  action  for  a  deficiency  due  upon  the  sale,  and  may  be  en- 
joined from  bringing  such  action. ^^ 

§  454.  Unpropitious  time  of  sale  no  ground  for  injunction. 
The  fact  that  the  time  of  sale  of  lands  under  a  trust  deed  is 
unpropitious,  that  money  is  scarce,  and  that  owing  to  the  terms 
exacted  the  sale  will  be  attended  with  great  if  not  irreparable 
loss  to  the  owner  of  the  property,  affords  no  ground  for  en- 
joining the  sale.-'^*^  And,  in  the  absence  of  fraud  or  collusion 
en  the  part  of  the  mortgagee,  the  mortgagor  can  not  enjoin  a 
sale  under  a  power,  upon  the  ground  that  the  sale  would  be 

■•7  Newbold  v.  Newbokl,  1  Del.  49  Innes  v.  Stewart,  36  Mich.,  285. 
Ch.,  .310.  coMuller  v.  Bayly,  21  Grat,  521; 

4«  Willes  V.  Levett,  1  De  G.  &  Caperton  v.  Landcraft,  3  West  Va., 
Sm.,  392.  540.     And  see  Miller  r.  Parker,  73 

N.  C.  58. 


CHAP.  VII.]  PERTAINING  TO   MORTGAGES.  417 

unpropitious,  or  that  it  is  to  be  made  at  an  under-valuation.^i 
And  one  who  has  pledged  certain  shares  of  stock  with  his 
stock  brokers  as  collateral  security  for  transactions  between 
them,  can  not  enjoin  their  sale  upon  mere  general  averments 
of  irreparable  injury,  or  because  of  the  market  for  such  stocks 
being  unfavorable,  in  the  absence  of  any  averments  of  de- 
fendant's insolvency.^-  Nor  does  the  fact  that  the  sheriff  has 
not  yet  made  a  report  of  sale  in  a  proceeding  for  the  fore- 
closure of  a  mortgage  of  itself  constitute  sufficient  ground  for 
enjoining  defendant  from  moving  to  set  aside  the  sale  under 
the  decree  of  foreclosure.-''^ 

§  455.  Absolute  conveyance,  instead  of  mortgage,  when  sale 
enjoined.  Where  the  owner  of  real  estate  has  been  induced 
by  fraud  and  undue  influence  to  give  an  absolute  convej^- 
r.nce  of  his  property  to  one  who  has  advanced  him  money,  the 
owner  intending  only  to  give  a  mortgage  or  security  for  the 
money  advanced,  a  court  of  equity  will  enjoin  a  sale  of  the 
premises  by  the  grantee.^* 

§  456.  Equity  averse  to  enjoining  sale  under  power.  Courts 
of  equity  are  reluctant  to  interfere  with  the  exercise  of  a 
power  of  sale  conferred  by  the  mortgagor,  and  unless  such 
power  is  prohibited  by  law  it  will  usually  be  permitted  to  be 
exercised  in  accordance  with  the  agreement  of  the  contracting 
parties.  And  where  it  was  sought  to  enjoin  in  New  York  a 
sale  of  mortgaged  premises  in  Colorado  under  a  power  con- 
tained in  the  mortgage  authorizing  a  sale  in  the  city  of  New 
York,  an  injunction  was  refused,  upon  the  ground  that,  in 
the  absence  of  any  statutory  prohibition,  the  parties  to  the 
rr.ortgage  might  agree  upon  the  power  of  sale.  And  although 
under  the  laws  of  New  York  no  sale  under  such  power  could 
be  allowed  of  real  estate  situated  in  that  state,  yet  in  the  ab- 
sence of  any  proof  that  a  sale  under  the  power  was  in  conflict 

51  Warner   v.   Jacob,    20   Ch.   D.,  ss  Rogers  v.   Holyoke,  14  Minn., 

220.  220. 

•'-  Park  V.  Musgrave,  2  Thomp.  &  ^*  Peeler  v.  Barringer,  Winston's 

C,  571.  Law  and  Eq.,  part  second,  5. 

27 


418  INJUNCTIONS.  [chap.  VIl. 

with  the  laws  of  Colorado,  the  injunction  was  refused.'^'*  And 
the  fact  that  the  mortgagee  threatens  to  sell  the  premises  ab- 
solutely and  without  redemption  does  not  warrant  a  court  of 
equity  in  enjoining  a  foreclosure  of  the  mortgage  by  adver- 
tisement under  the  power  of  sale.^*^  Nor  will  a  sale  under 
power  be  enjoined  merely  because  of  hardship  to  the  mortgagor, 
as  where  the  mortgaged  property  considerably  exceeds  in  value 
the  amount  of  the  debt.^^ 

§  457.  Sale  under  deed  of  trust  to  national  bank  enjoined. 
A  national  bank  incorporated  under  the  act  of  Congress  known 
as  the  national  banking  act,  having  no  power  under  the  act 
to  accept  real  estate  security  for  loans,  it  is  held  in  Missouri 
that  such  security  is  absolutely  void.  And  a  deed  of  trust 
conveying  real  property  as  security  for  a  loan  due  to  a  na- 
tional bank,  being  thus  treated  as  ultra  vires  and  void,  an 
injunction  has  been  allowed  to  restrain  a  sale  under  such 
deed  in  satisfaction  of  the  indebtedness.'^^ 

§  458.  Garnishee  proceedings  against  mortgagor.  The  fact 
that  judgment  has  been  rendered  against  the  mortgagor  as 
garnishee  in  another  county  does  not  of  itself  constitute  suf- 
ficient equity  to  warrant  him  in  restraining  mortgagees  from 
the  collection  of  the  money  by  a  sale  of  the  mortgaged  prem- 
ises under  a  decree  in  foreclosure,  and  in  the  absence  of  any 
allegation  that  he  has  satisfied  the  judgment  against  him  as 
garnishee  he  will  not  be  allowed  to  enjoin  proceedings  under 
the  decree.'''' 

§  459.  When  perpetual  injunction  allowed  in  action  of  in- 
terpleader. Where  a  contest  arose  between  the  assignor  and 
assignee  of  a  mortgage  touching  its  ownership,  and  the  mort- 
gagor, upon  a  bill  of  interpleader  to  determine  to  whom  the 
indel)tedness  should  be  paid,  obtained  an  injunction  against  a 

'-•>  Carpenter  v.  Black  Hawk  Co.,  -'^  Matthews  v.  Skinker,  62  Mo., 

65   N.    Y.,   43.  329. 

"'O  Armstrong  v.  Sanford,  7  Minn.,  •"■»  Dunham  v.   Collier,   1   Greene 

49.  (Iowa),   54. 

"  McCnlla   r.    Beadleston,    17    R. 
I.,   20,   20  Atl.,   11. 


CHAP.  Vll.J  PERTAINING  TO  MORTGAGES.  419 

sale  of  the  premises  under  the  mortgage  and  paid  the  money 
into  court,  and  the  court  by  its  final  decree  determined  to  whom 
the  money  should  be  paid,  it  was  held  to  be  error  to  dissolve 
the  injunction,  and  that  it  should  have  been  made  perpetual."^ 

§  460.  General  averments  of  misrepresentation  by  vendor 
insufficient.  Where  it  is  sought  by  a  purchaser  of  real  estate 
to  enjoin  its  sale  under  a  deed  of  trust  given  as  security  for 
notes  for  the  unpaid  purchase  money,  mere  general  averments 
of  misrepresentations  by  the  vendor  concerning  the  title  are  not 
sufficient  to  warrant  the  interposition  of  the  court,  when  it  is 
not  shown  that  any  actual  deception  was  either  intended  or 
accomplished  by  the  vendor.^i 

§  461.  Dissolution  of  the  injunction.  When  the  allegations 
of  the  bill  upon  which  an  injunction  is  obtained,  restraining 
a  sale  of  real  estate  under  a  deed  of  trust  in  the  nature  of  a 
mortgage,  are  fully  denied  by  defendant's  answer,  and  are  not 
supported  by  evidence  upon  the  hearing,  the  injunction  should 
be  dissolved.^2  Where,  however,  it  is  necessary  to  ascertain 
the  amount  due  from  the  debtor  and  for  which  the  sale  should 
be  made,  it  is  regarded  as  premature  to  dissolve  an  injunc- 
tion restraining  a  sale  under  a  deed  of  trust,  although  the 
grounds  upon  which  it  was  granted  are  not  maintained,  and 
it  should  be  retained  until  such  amount  is  determined."^ 

§  461  a.  Sale  under  chattel  mortgage,  when  enjoined.  Upon 
a  bill  to  enjoin  a  sale  of  chattels  under  a  mortgage,  the  bill 
averring  that  the  bonds  secured  by  the  mortgage  were  not 
lawfully  issued  and  arc  invalid  in  the  hands  of  the  holders, 
the  answer  denying  the  averments  of  the  bill  only  upon  in- 
formation and  belief,  it  is  proper  to  grant  an  interlocutory 
injunction  until  the  rights  of  the  parties  can  be  fully  heard 
and  determined. ^^ 

60  Gardner  v.  Hershey,  27  Ark.,  s*  Carpenter  v.  Talbot,  33  Fed., 
552.  537.     As  to  the  right  to  enjoin  a 

61  Walker  v.  Burks,  48  Tex.,  206.  sale  of  goods  under  a  chattel  mort- 

62  Arbuckle  v.  McClanahan,  6  gage  upon  the  ground  that  they 
West  Va.,  101.  are  not  covered  by  the  mortgage, 

63  White  V.  Mechanics  Building  see  Lanier  v.  Adams,  72  Grat,  145. 
Fund  Association,  22  Grat.,  233. 


420  INJUNCTIONS.  [chap.  VII. 


II.    Injunctions  in  Behalf  of  Mortgagees. 

§  462.    When   junior    mortgagee   allowed    injunction. 

463.  Injunctions    as    between    mortgagees    and    judgment   creditors. 

464.  Rents  and  profits  pending  foreclosure;   when  receiver  and  in- 

junction allowed. 

465.  Transfer  by  mortgagor  not  enjoined  when  mortgage  recorded. 

466.  Effect  of  mistake  or  uncertainty. 

467.  Creditors  of  mortgagor  enjoined  from  levying  upon  crops. 

468.  Mortgages   of    chattels. 

§  462.  When  junior  mortgagee  allowed  injunction.  The 
aid  of  equity  by  injunction  is  frequently  invoked  in  behalf  of 
junior  mortgagees,  for  the  purpose  of  protecting  their  rights 
in  the  mortgaged  premises  and  for  the  preservation  and  se- 
curity of  their  lien.  And  while  the  relief  is  rarely  granted 
in  behalf  of  a  junior  against  a  prior  mortgagee  to  prevent 
the  enforcement  of  the  rights  and  equities  of  the  latter  under 
his  prior  mortgage,  there  are  cases  where  an  injunction  is 
necessary  to  prevent  a  sale  of  the  premises  to  the  irreparable 
injury  of  the  junior  incumbrancer.  For  example,  a  junior 
mortgagee  will  be  allowed  to  enjoin  proceedings  under  a  fore- 
closure whereby  it  is  attempted  to  tack  subsequent  advances 
to  the  prior  mortgage  so  as  to  create  a  lien  to  the  prejudice 
of  the  puisne  incumbrancer.^  And  since  a  junior  mortgagee 
is  entitled  to  redeem  from  a  prior  mortgagee  and  upon  such  re- 
demption to  be  subrogated  to  his  rights,  upon  a  bill  seeking 
such  redemption  and  subrogation  he  may  have  an  injunction 
against  a  sale  or  transfer  of  the  judgment  in  foreclosure  of 
the  prior  mortgage,  having  tendered  the  amount  due  upon  the 
foreclosure.  And  an  additional  reason  for  the  relief  in  such 
case  is  found  in  the  fact  that  a  sale  under  the  foreclosure  judg- 
ment under  such  circumstances  would  cast  a  cloud  upon  com- 
plainant's title.2  But  a  subsequent  mortgagee  will  not  be  al- 
lowed to  enjoin  a  sale  of  the  mortgaged  premises  under  a  prior 

1  Hughes  V.  Worley,  1  Bibb,  200.        2  Dings  r.  Parshall,  7  Hun,  522. 


CHAI'.  VII.]  PERTAINING  TO  MORTGAGES.  421 

incumbrance,  when  he  refuses  to  redeem  under  such  incum- 
brance and  only  seeks  to  hinder  the  sale.^  And  an  additional 
ground  for  refusing  the  relief,  under  such  circumstances,  is 
found  in  the  fact  that  the  property  is  depreciating  in  value 
by  lapse  of  time.^  Nor  will  a  subsequent  mortgagee  be  per- 
mitted to  enjoin  a  sale  of  the  premises  under  a  forecolsure  of 
a  prior  mortgage,  when  he  was  made  a  party  to  such  fore- 
closure proceedings  and  could  have  interposed  his  equities  in 
defense  of  that  action.^ 

§  463.  Injunctions  as  between  mortgagees  and  judgment 
creditors.  Relief  by  injunction  is  also  granted  as  between 
mortgagees  and  judgment  creditors  of  the  mortgagor  for  the 
protection  of  the  former  in  cases  where  they  would  otherwise 
be  without  adequate  remedy  for  the  protection  of  their  mort- 
gage lien.  Thus,  one  who  has  a  prior  lien  by  way  of  mortgage 
upon  real  estate,  which  is  also  subject  to  the  lien  of  a  judg- 
ment subsequent  to  the  mortgage,  if  the  fact  of  such  priority 
is  not  disclosed  by  the  record,  may  have  an  injunction  to  pre- 
vent an  attempted  sale  of  the  property  under  the  judgment  as 
the  absolute  property  of  the  judgment  debtor,  free  from  any 
lien.^  But  a  mortgagee  can  not  enjoin  a  sale  of  the  premises 
under  a  judgment  subsequent  to  the  mortgage,  when  it  is 
not  shown  that  the  sale  will  not  be  made  subject  to  the  lien 
of  the  mortgage.'''  Nor  is  a  mortgagee  entitled  to  relief  in 
such  case  upon  the  ground  that  the  judgment  creditor  is  as- 
serting that  plaintiff's  mortgage  and  notes  are  fraudulent  and 
void.^  But  the  holder  of  the  bonds  of  a  railway  company  se- 
cured by  a  mortgage  of  its  property,  which  is  prior  to  the 
lien  of  a  judgment  against  the  company,  is  entitled  to  an  in- 
junction to  prevent  the  enforcement  of  an  execution  against 

3  Meysenburg  v.  Schlieper,  46  see  Wiedner  v.  Thompson,  66  Iowa, 
Mo.,   209.  283,  23  N.  W.,  670. 

4  Id.  "^  Ruthven  Brothers  v.   Mast,   55 

5  Bloomingdale     v.     Barnard,     7  Iowa,  715,  8  N.  W.,  659. 

Hun,  459.  s  Ramsdell  v.   T.   W.    P.  Co.,   84 

G  Plumb  V.  Bay,  18  Kan.,  415.  But     Iowa,  484,  51  N.  W.,  245. 


422  INJUNCTIONS.  [chap.  VII. 

the  property  of  the  company  under  such  judgment.^  And  a 
mortgagee  whose  lien  is  junior  to  that  of  a  judgment  creditor 
may  have  an  injunction  against  a  sale  of  the  mortgaged  prem- 
ises under  the  prior  judgment,  upon  a  bill  alleging  that  the 
judgment  has  been  fully  paid  and  is  being  fraudulently  kept 
on  foot  to  defeat  the  mortgagee's  security.  Such  a  case  is  re- 
garded as  affording  strong  ground  for  equitable  relief,  and  is 
clearly  distinguishable  from  the  case  of  a  mere  general  cred- 
itor, without  lien  or  priority,  who  seeks  to  enjoin  a  transfer 
of  his  debtor's  property.^ °  So  where  a  deed  of  trust  is  a 
valid  and  subsisting  lien  upon  real  estate,  a  court  of  equity 
may,  in  behalf  of  the  trustee,  enjoin  a  sale  of  the  same  prem- 
ises under  a  judgment  and  execution  to  which  the  land  is  not 
subject.^  ^  But  it  is  held  in  Louisiana  that  a  mortgagee  can 
not  be  allowed  to  enjoin  a  sale  of  the  mortgaged  premises 
under  executions  against  the  mortgagor,  upon  the  ground  of 
irregularity  and  illegality  in  the  proceedings  of  the  sheriff 
in  making  the  sale;  since  if  the  sale  be  null,  it  can  not  affect 
the  rights  of  the  mortgagee;  while  if  it  be  valid,  he  has  a 
remedy  at  law  to  reach  the  proceeds  of  the  sale.^-  Nor  can  a 
mortgagee  enjoin  a  judicial  sale  of  the  property  in  satisfac- 
tion of  debts  of  a  higher  rank  and  having  preference  over 
his  mortgage,  merely  because  he  was  not  notified  of  the  order 
of  sale.^^ 

§  464.  Rents  and  profits  pending  foreclosure ;  when  receiver 
and  injunction  allowed.  As  regards  the  right  to  receive  the 
rents  and  profits  of  the  mortgaged  premises  pending  a  fore- 
closure, the  mortgagor  will  not  ordinarily  be  restrained  before 
answer  from  receiving  or  collecting  them.^^  But  the  rule  is 
well  established  that  inadequacy  of  the  mortgaged  premises 

0  Butler  r.  Rahm,  46  Md.,  541.  12. James  r.  Breaiix,  26  La.  An., 

10  Brigham    v.    White,    44    Iowa,     245. 

677.  .  I''  Wells  V.  Wells,  25  La.  An..  194. 

11  Whitfielfl  r.  Clark,  48  Ala.,  n  Oliver  v.  Decatur,  4  Cranch  C. 
555.  C,  458. 


CHAP.  VII. J        PERTAINING  TO  MORTGAGES.  423 

as  a  security  for  the  indebtedness,  coupled  with  insolvency  of 
the  mortgagor,  will  warrant  a  court  of  equity  in  appointing 
a  receiver  over  the  mortgaged  property  and  enjoining  the 
mortgagor  from  any  interference  with  such  receiver  or  with 
the  property.^  ^ 

§  465.  Transfer  by  mortgagor  not  enjoined  when  mortgage 
recorded.  While  an  injunction  is  sometimes  necessary  in  aid 
of  a  suit  for  a  foreclosure  by  the  mortgagee,  yet  when  the 
mortgage  is  duly  recorded  so  that  its  lien  can  not  be  impaired 
by  a  subsequent  transfer  of  the  premises  by  the  mortgagor,  a 
court  of  equity  will  not  in  aid  of  a  foreclosure  enjoin  the 
mortgagor  from  transferring  his  interest  in  the  premises.  And 
the  relief  is  properly  refused  in  such  ease,  for  the  reason  that, 
while  an  injunction  might  embarrass  the  mortgagor,  it  could 
not  be  of  any  advantage  to  the  mortgagee.^ ^ 

§  466.  Effect  of  mistake  or  uncertainty.  Where  through 
a  mistake  in  the  description  a  mortgage  does  not  cover  the 
entire  premises  intended  to  be  conveyed,  there  is  sufficient 
ground  for  invoking  the  protection  of  equity,  and  a  purchaser 
at  a  foreclosure  sale  under  the  mortgage  may  enjoin  the  de- 
visee of  the  mortgagor  from  proceeding  in  ejectment  to  recover 
that  portion  of  the  premises  which  was  omitted.^"  So  a  sheriff 
may  be  enjoined  from  delivering  a  deed  of  premises  sold  by 
him  by  virtue  of  an  execution  in  foreclosure  proceedings  when 
the  execution  by  mistake  has  directed  the  sale  of  lands  not 
included  in  the  mortgage  and  not  described  in  the  bill.^^   And 

15  Ruggles    V.     Southern     Minne-  Michigan    Lake    Shore    R.    Co.,    U. 

sota  Railroad,  U.  S.  Circuit  Court,  S.  Circuit  Court,  Western  District 

District   of   Minnesota,    5    Chicago  of  Michigan,  6  Chicago  Legal  News, 

Legal  News,   110.     And   see  as   to  101;    Hill   v.   Robertson,    24    Miss., 

the   right   of   the   mortgagee   to    a  338;  Sea  Insurance  Co.  v.  Stebbins, 

receiver  over  the  premises  and  to  8  Paige,  565. 

collect  the  rents  pending  his  action  is  Breon  r.  Strelitz,,  48  Cal.,  645. 

for  a  foreclosure,  Quincy  v.  Cheese-  i^  Waldron  r.  Letson,  2  McCart., 

man,  4  Sandf.  Ch.,  405;    Brown  r.  126. 

Chase,  Walk.   (Mich.),  43;   Hyman  is  Corles   r.    Lashley,    2   McCart., 

V.    Kelly,    1    Nev.,    179;     Keep    r.  116. 


424  INJUNCTIONS.  [CIIAP.  VII. 

where,  in  construing  a  mortgage,  there  is  serious  question  as 
to  whether  certain  machinery  on  the  premises  is  included  in 
it,  a  plain  case  is  afforded  for  the  interposition  of  equity  to 
prevent  the  removal  of  the  property;  it  being  proper  that 
the  court  should  retain  it  within  its  jurisdiction  until  the 
question  can  be  satisfactorily  determined.^ ^ 

§  467.  Creditors  of  mortgagor  enjoined  from  levying  upon 
crops.  As  regards  the  question  of  corps  growing  on  the  prem- 
ises at  the  time  of  a  sale  under  foreclosure,  it  is  held  that  the 
doctrine  of  emblements  does  not  apply,  and  that  such  crops 
properly  belonged  to  the  purchasers  at  the  foreclosure  sale. 
Equity  will  therefore  restrain  the  creditors  of  the  mortgagor 
from  proceeding  under  an  execution  to  levy  upon  such  crops.^^ 
And  mortgagees  who  have  taken  possession  under  their  mort- 
gage may  enjoin  one  claiming  under  the  mortgagor  from  re- 
moving crops  which  were  growing  upon  the  premises  at  the 
time  of  taking  such  possession.-^ 

§  468.  Mortgages  of  chattels.  Upon  principles  analogous  to 
those  which  govern  a  court  of  equity  in  restraining  the  com- 
mission of  waste  by  a  mortgagor  in  possession  in  cases  of  real 
estate,  a  mortgagor  of  chattels  may  be  restrained  from  mov- 
ing the  property  beyond  the  reach  of  the  mortgagee,  or  from 
placing  it  where  it  will  not  be  forthcoming  for  the  satisfac- 
tion of  the  debt.22  So  a  mortgagee  is  entitled  to  an  injunc- 
tion, pending  the  foreclosure  of  a  chattel  mortgage,  to  pre- 
vent acts  of  waste  which  result  in  the  destruction  of  the  mort- 
gaged chattels.-^  And  a  mortgagee  of  personal  property^ 
where  by  the  terms  of  the  mortgage  possession  is  to  be  re- 
tained until  condition  broken,  may  enjoin  proceedings  against 

10  Hutchison  f.  Johnson,  3  Haist.  -^  Clagett  i\  Salmon,  5  Gill  & 
Ch.,  40.  J-,    314.        See    also    Valentine    v. 

20  Crews  V.   Pendleton,    1   Leigh,     Washington,  33  Ark.,  795. 

297.  -•'  Schoonover     v.     Condon,     12 

21  Bagnall   v.   Villar,    12    Ch.    D..     Wash.,  475,  41  Pac,  195. 
812. 


CHAP.  VII.]  PERTAINING  TO  MORTGAGES.  425 

the  property  by  other  creditors.^*    While  the  principle  is  not 
disputed  that  the  equity  of  redemption  of  a  mortgagor  of  per- 
sonal chattels  in  possession  may  be  levied  upon  and  sold  in 
satisfaction  of  an  execution  against  the  mortgagor,  yet  a  court 
of  equity  may  by  injunction  restrain  the  exercise  of  this  right 
where  it  will  greatly  impair,  if  not  largely  destroy,  the  rights 
of  the  mortgagee  to  the  property  in  question.^^     But  a  mort- 
gagee of  chattels  in  possession  has  been  refused  an  injunction 
to  restrain  their  sale  under  execution  against  the  mortgagor 
upon  a  judgment  recovered  after  the  execution  of  the  mort- 
gage, the  chattels  having  no  especial  or  peculiar  value  which 
could  not  be  fully  compensated  in  an  action  at  law.-^     Nor 
can  a  mortgagee  of  chattels  enjoin  the  mortgagor  from  dis- 
posing of  them  when  adequate  relief  may  be  had  at  law  by  an 
action  of  replevin  for  their  recovery .^^^    So  a  junior  mortgagee 
of  chattels  can  not  restrain  their  sale  under  a  senior  mortgage, 
upon  the  ground  that  a  portion  of  the  property  is  not  covered 
by  such  senior  mortgage,  the  remedy  at  law  being  ample  in 
such  case.2^     But  a  mortgagee  of  chattels  may  restrain  the 
enforcement  of  a  judgment  of  foreclosure  upon  the  same  chat- 
tels under  a  mortgage  executed  by  the  mortgagor  to  defraud 
his  creditors,  although  complainant's  mortgage  is  not  yet  due^ 
and   regardless  of   the   solvency   or   insolvency   of  the   mort- 
gagor. 


29 


24  Curd   V.   Wunder,    5   Ohio    St.,  nis,  32  Minn.,  193,  20  N.  W.,  85. 
92.  -« Rankin    v.    Rankin,    67    Iowa, 

25  Smithurst  v.  Edmunds,  1   Mc-  322,  25  N.  W.,  263. 

Cart.,  408.  29  McCormick     v.     Hartley,     107 

26  La  Mothe  v.  Fink,  8  Biss.,  493.  Ind.,  248,  6  N,  E.,  357. 

27  Minnesota  L,  O.  Co.  v.  Magin- 


426  INJUNCTIONS.  [chap.  VII. 


III.      Injunctions  Concerning  Third  Parties. 

§  469.     Proceedings   under   mortgage   enjoined   to   prevent  cloud   upon 
title. 

470.  Mortgagee   of   chattels   refused   injunction  against   sale   under 

execution. 

471.  Relief  as  between  judgment  creditors  and  mortgagees. 

472.  Assignees  of  mortgagor;    purchaser  subject  to  mortgage. 

473.  Injunction  denied  where  remedy  at  law. 

474.  Foreclosure  not  enjoined  because  of  failure  of  title. 

475.  Tenants  in  common. 

476.  Foreign    corporation   not   enjoined   from   mortgaging   its    prop- 

erty. 

477.  Bill   of  sale   in  nature  of  mortgage. 

§  469.  Proceedings  under  mortgage  enjoined  to  prevent 
cloud  upon  title.  Under  its  well  established  jurisdiction  for 
the  prevention  of  a  cloud  upon  the  title  to  real  property,  equity 
may  restrain  proceedings  under  a  mortgage  which  is  found 
to  be  a  cloud  upon  the  title  of  complainant.  And  where,  under 
a  parol  agreement  for  the  conveyance  of  lands,  complainant 
had  entered  upon  the  same,  paid  the  purchase  money  and  re- 
mained in  possession,  making  valuable  improvements,  but  be- 
fore receiving  his  conveyance  his  vendor  had  mortgaged  the 
premises  to  a  third  person,  who  took  his  mortgage  with  knowl- 
edge of  complainant's  rights,  an  injunction  was  allowed  to  re- 
strain proceedings  under  the  mortgage  as  being  a  cloud  upon 
complainant's  title.^  So  a  sale  under  a  mortgage  in  fraud 
of  complainant's  rights  may  be  enjoined  upon  the  ground  of 
preventing  a  cloud  upon  title.  Thus,  where  complainant  re- 
quested his  copartner  to  pay  a  mortgage  for  him  and  to  charge 
it  in  account  upon  the  firm  books,  and  the  latter  did  so,  agree- 
ing also  to  procure  its  release  and  discharge,  but  fraudulently 
and  in  violation  of  his  agreement  caused  it  to  bo  assigned  to 
defendant,  it  was  held  that  a  sale  under  the  mortgage  would 
be  a   fraud   upon  Complainant's  rights  and  a  cloud   upon  his 

1  Terry  v.  Raseli,  32  Ark.,  478. 


CHAP.  VII.]  PEKTAINING  TO  MORTGAGES.  427 

title.  It  was,  therefore,  regarded  as  proper  to  enjoin  such  sale 
in  an  action  for  an  accounting  and  for  the  cancellation  of  the 
mortgage  and  assignment.-  So  the  owner  of  real  estate  may 
enjoin  proceedings  for  the  foreclosure  of  a  void  mortgage 
which  constitutes  a  cloud  upon  his  title.^  And  when,  after 
the  satisfaction  and  discharge  of  a  mortgage,  it  is  assigned 
and  a  foreclosure  and  sale  are  had  by  the  assignee,  a  pur- 
chaser from  the  mortgagor,  who  was  not  a  party  to  the  fore- 
closure suit  and  who  had  no  notice  of  it  until  after  the  decree, 
may  maintain  a  bill  to  set  aside  the  conveyance  under  the 
foreclosure  and  may  enjoin  defendants  from  conveying  or  in- 
terfering with  the  premises."'  But  one  who  purchases  real 
estate  subject  to  a  mortgage,  while  entitled  to  enjoin  its 
sale  under  the  mortgage  until  the  amount  actually  due  may 
be  determined,  is  not  entitled  to  such  injunction  after  the  de- 
termination of  the  amount  of  the  indebtedness.^  And  a  sale 
of  lands  under  a  deed  of  trust  will  not  be  enjoined  at  the  suit 
of  one  who  is  in  possession  claiming  under  a  recorded  legal 
title,  when  such  title  is  superior  to  any  which  can  be  acquired 
by  a  purchaser  at  the  sale,  and  when  ample  relief  may  be  had 
at  law  against  any  assertion  of  title  by  such  purchaser.^ 

§  470.  Mortgagee  of  chattels  refused  injunction  against  sale 
under  execution.  In  the  case  of  a  mortgage  of  chattels,  under 
which  the  mortgagee  has  taken  possession  with  a  view  to 
selling  the  property  in  satisfaction  of  the  debt,  he  is  not 
entitled  to  an  injunction  to  prevent  a  judicial  sale  of  the 
chattels  under  execution  against  the  mortgagor.  In  such  case, 
the  property  having  no  especial  or  peculiar  character  or  value, 
and  its  real  money  value  being  readily  ascertainable,  what- 
ever damages  may  be  sustained  by  the  mortgagee  by  reason 

2  Conkey  v.  Dike,  17  Minn.,  457.  And  see  this  case  as  to  the  right 

s  Yager  v.  Merkle,  26  Minn.,  429,  of  the   purchaser    to    enjoin  a  sale 

4  N.  W.,  819.  of  chattels  under  a  mortgage. 

4  Matheson  r.  Thompson,  20  Fla.,  «  Wilcox  v.  Walker,  94  Mo.,  88, 
790.  7  S.  W.,  115. 

5  Osburn  r.  Andre,  58  Miss.,  609. 


428 


INJUNCTIONS. 


[chap.  VII. 


of  the  sale  under  execution  may  readily  be  determined  and 
compensated  by  an  action  at  law,  and  equity  will  not,  there- 
fore, interfere  by  injunction  to  restrain  the  threatened  sale. 
Nor  does  the  fact  that  the  mortgagee,  in  such  case,  can  not 
avail  himself  of  all  possible  legal  remedies  entitle  him  to  re- 
lief by  injunction  if  any  form  of  action  at  law  is  open  to  him 
in  which  a  complete  and  adequate  remedy  may  be  had." 


-  La  Mothe  v.  Fink,  8  Bissell,  493; 
S.  C,  12  Chicago  Legal  News,  152. 
Ine  rule  as  stated  in  the  text,  and 
the  reasons  in  its  support  are  very 
clearly  stated  in  the  opinion  of  Mr. 
Justice  Dyer  in  this  case,  as  fol- 
lows: "Accepting  the  allegations 
of  the  bill  as  true,  and  admitting 
that  complainant  was  in  posses- 
sion and  held  the  legal  title  to 
the  property  when  it  was  seized, 
the  question  is  whether  there  is 
such  want  of  adequate  remedy  at 
law  as  entitles  complainant  to  come 
into  a  court  of  equity  for  relief  by 
injunction  to  restrain  the  threat- 
ened disposition  of  the  property  at 
execution  sale.  There  is  a  familiar 
class  of  cases  cited  in  the  element- 
ary works,  in  which,  on  account 
of  their  antiquity  or  historical 
character,  or  other  peculiar  value, 
jurisdiction  in  equity  was  enter- 
tained to  prevent  the  transfer  or 
defacement  or  other  injury  of  ar- 
ticles of  personal  property,  or  to 
compel  their  specific  delivery.  But 
it  is  stated  that  these  were  cases 
where  the  articles  were  of  peculiar 
value  and  importance,  and  the  loss 
of  which  could  not  be  fully  com- 
pensated in  damages.  Such  was 
the  case  of  the  silver  altar-piece 
bearing  a  Greek  inscription,  and  of 
furious  antiquity,  and  which  could 
not  be  replaced  in  value:     Somer- 


set V.  Cookson,  3  P.  Will.,  390; 
and  of  the  horn  which  constituted 
the  tenure  by  which  an  estate  was 
held:  Pusey  v.  Pusey,  1  Vern., 
273;  and  of  the  silver  tobacco  box: 
Fells  V.  Read,  3  Ves.,  70;  and  of 
the  masonic  dresses  and  decora- 
tions: Lloyd  V.  Loaring,  6  Ves., 
773.  Other  similar  cases  involving- 
articles  of  property  which  were 
family  relics  or  heirlooms,  are  re- 
ported in  13  Ves.,  95;  3  Ves.  &  B., 
16,  17,  18,  and  10  Ves.,  140,  148, 
163.  All  these  were  cases  where  the 
chattels  were  articles  of  antiquity 
or  curiosity,  or  were  memorials  of 
affection,  or  constituted  insignia  of 
office,  and  equitable  interposition 
to  preserve  them  to  the  owner  in 
specie,  was  sustained  on  the  ground 
that  they  were  of  peculiar  charac- 
ter and  value,  and  that  the  recov- 
ery of  their  intrinsic  value  in 
money  would  not  be  adequate  sat- 
isfaction to  the' owner.  There  is 
another  class  of  cases  in  which 
courts  of  equity  have  interposed  to 
protect  the  owner  of  specific  chat- 
tels in  the  beneficial  enjoyment 
and  use  of  them  in  specie.  As 
where  certain  articles  of  property 
were  placed  in  the  hands  of  an 
agent  to  be  held  for  the  owner,  and 
the  agent  has  threatened  to  dispose 
of  them  to  a  third  party,  in  viola- 
tion of  his  trust.   The  ground  upon 


CHAP.  VII.] 


PERTAINING  TO  MORTGAGES. 


429 


§  471.  Relief  as  between  judgment  creditors  and  mort- 
gagees. A  judgment  creditor  of  a  mortgagor  has  been  al- 
lowed an  injunction  to  restrain  the  mortgagees  of  his  debtor, 
under  a  mortgage  with  power  of  sale,  from  paying  to  the 
debtor  any  moneys  which  they  might  realize  under  the  power 


which  equitable  relief  in  such  cases 
has  been  afforded,  is  found  to  lie 
in  the  fiduciary  relation  which  ex- 
isted between  the  parties,  together 
with  the  threatened  mischief. 
Wood  V.  Rowcliffe,  3  Hare,  308. 
The  principle  upon  which  jurisdic- 
tion may  be  invoked  to  grant  re- 
lief by  injunction  or  decree  for 
specific  delivery  of  personal  prop- 
erty in  the  classes  of  cases  men- 
tioned, is  plainly  not  applicable  to 
the  case  at  bar,  for  here  the  case  is 
simply  that  of  seizure  and  threat- 
ened sale  upon  execution  of  or- 
dinary personal  property,  the  en- 
tire and  actual  value  of  which  for 
all  purposes  is  ascertainable,  and  is 
wholly  measurable  by  money,  and 
which  the  alleged  owner  holds 
only  for  purposes  of  sale  and  con- 
version into  money,  to  satisfy  a 
debt.  *  *  *  Now,  bearing  in 
mind  that  the  application  to  a  par- 
ticular case  of  the  principle  that 
the  absence  of  a  plain  and  adequate 
remedy  at  law  offers  the  only  test 
of  equity  jurisdiction,  must  wholly 
depend  upon  the  character  of  the 
case  itself,  it  must  be  said  of  the 
case  at  bar,  that  it  presents  no  pe- 
culiar or  extraordinary  features, 
and  that  it  is  plainly  distinguish- 
able from  the  cases  that  have  been 
noticed,  in  which  relief  by  injunc- 
tion was  successfully  invoked. 
Why  is  not  complainant's  remedy 
at  law,  taking  the  facts  as  averred 


in  the  bill,  plain  and  adequate? 
She  alleges  that  she  took  posses- 
sion of  the  property  in  question 
under  her  mortgage.  She  in  effect 
claims  legal  title.  She  took  pos- 
session and  held  the  property  for 
one  purpose  only,  namely,  to  sell 
and  convert  it  into  money  for  sat- 
isfaction of  her  debt.  The  property 
is  not  of  peculiar  character  or 
value.  Its  value  is  readily  ascer- 
tainable. It  has  only  for  her  a 
money  value.  A  recovery  of  its 
value  affords  complete  compensa- 
tion. Whatever  damages  she  may 
sustain  by  execution  sale  of  the 
property  can  be  completely  re- 
paired at  law.  There  was  some 
discussion  on  the  argument  as  to 
whether  she  could  maintain  trover 
or  replevin  in  this  court.  Upon 
that  question  I  forbear  to  express 
an  opinion.  But  undoubtedly  she 
could  maintain  trespass  or  trover 
against  the  marshal,  if  her  claim 
be  well  founded  in  the  state  court. 
It  is  said  that  she  can  not  maintain 
replevin  in  the  state  court.  And 
so  it  was  argued  that  her  remedy 
at  law  was  not  adequate  unless  she 
could  have  the  benefit  of  all  possi- 
ble legal  remedies.  But  it  does 
not  follow  because  she  may  not  be 
able  to  maintain  replevin,  that  an 
action  to  recover  compensation  in 
damages  does  not  afford  adequate 
remedy.  Plain  and  adequate  rem- 
edy at  law  does  not  mean  an  abil- 


430  INJUNCTIONS.  [CIIAP.  VII. 

of  sale.^  So  a  judgment  creditor  may  enjoin  the  mortgagee 
of  his  debtor  from  assigning  a  mortgage  given  b}^  the  debtor 
without  consideration  from  the  mortgagee  and  in  anticipa- 
tion of  the  adverse  outcome  of  litigation  pending  between 
complainant  and  the  debtor."  But  a  judgment  creditor  will 
not  be  enjoined  from  satisfying  his  judgment  out  of  the  prop- 
erty of  his  debtor,  which  is  subject  to  a  mortgage,  merely  be- 
cause possession  of  the  property  by  the  debtor  is  necessary 
to  enable  the  latter  to  pay  the  mortgage.^*^  And  where  a  mort- 
gagee of  chattels  took  possession  of  the  property  upon  default 
in  payment  and  advertised  it  for  sale,  and  a  judgment  cred- 
itor of  the  mortgagee  then  levied  upon  the  chattels,  it  was  held 
that  the  mortgagee  was  not  entitled  to  an  injunction  against 
the  sale  by  such  judgment  creditor,  the  legal  title  being  re- 
garded as  in  the  mortgagee  subject  to  defeasance  upon  per- 
formance of  the  condition.^  ^ 

§472.  Assignees  of  mortgag-or;  purchaser  subject  to  mort- 
gage. Equity  will  not  enjoin  a  prior  mortgagee,  under  a  mort- 
gage with  power  of  sale,  from  selling  the  premises  in  satis- 
faction of  the  debt,  upon  a  bill  filed  by  assignees  of  the  mort- 
gagor under  an  assignment  for  the  benefit  of  creditors  exe- 
cuted subsequent  to  the  mortgage,  when  the  grounds  urged 
for  the  injunction  may  all  be  presented  and  heard  before  the 

ity  to  resort  to  every  remedy  which  tained.     Moreover   in   determining 

the  forms  of  legal  procedure  give,  value,  the  complainant  would  not 

If  any  form  of  action  at  law  will  be   restricted   to  amounts   realized 

give  a  complete  and  adequate  rem-  for  the  property  by  the  marshal  on 

edy,   then  she  is  within  the  prin-  execution    sale.     She  would  be  at 

ciple  which  tests  the  right  to  resort  liberty    to    recover    actual    value, 

to  equity.     In  an  action  at  law  for  though    the    marshal    might    not 

the  alleged  trespass,  or  for  conver-  have  realized  one-half  such  value, 

sion  of  the  property,  the  measure  Application  for  injunction  denied." 

of  damages  would  be  the  value  of  «  Thornton  ;;.  Finch,  4  Gif.,  515. 

the  property  when  taken,  with  in-  »  Orr  v.  Peters,  197  Pa.  St.,  606, 

terest  from  the  time  of  the  taking  47  Atl..  849. 

to  the  time  of  the  trial,  and  this  i«  Coe  v.  Knox,  10  Ohio  St.,  412. 

would  under  the  facts  as  averred  'i  Adams  i'.  Nebraska  City  Bank, 

in  the  bill,  cover  all  damages  sus-  4  Neb.,  370. 


CHAP.  VII.]  PERTAINING   TO   MORTGAGES.  431 

proper  court  upon  an  application  to  confirm  the  sale.^-  And, 
generally,  it  may  be  said  that  a  purchaser  of  real  estate  subject 
to  a  mortgage  occupies  no  better  position  than  the  mortgagor 
for  the  purpose  of  restraining  a  sale  under  the  mortgage,  and 
he  can  ordinarily  urge  no  defense  which  could  not  have  been 
urged  by  the  mortgagor.^ ^ 

§  473.  Injunction  denied  where  remedy  at  law.  A  sale  under 
a  mortgage  will  not  be  enjoined  upon  the  application  of  one 
who  has  ample  remedy  at  law  for  the  grievance  which  is  made 
the  ground  of  his  application  for  equitable  relief,  the  injunc- 
tion being  withheld  in  such  case  in  conformity  with  the  gen- 
eral doctrine  denying  the  extraordinary  remedies  of  equity  in 
cases  which  are  remediable  at  law.  An  injunction  will,  there- 
fore, be  refused  against  a  sale  of  mortgaged  premises  upon 
a  bill  by  complainant  claiming  title  in  himself  when  full  re- 
lief may  be  had  at  law  by  asserting  his  claim  of  title  in  the 
method  prescribed  by  statute.^-* 

§474.  Foreclosure  not  enjoined  because  of  failure  of  title. 
A  court  of  equity  will  not  interfere  by  injunction  with  the 
foreclosure  of  a  deed  of  trust  in  the  nature  of  a  mortgage  se- 
curing unpaid  purchase  money,  upon  the  ground  of  a  failure 
of  title  to  a  portion  of  the  premises  conveyed,  when  the  pur- 
chaser and  his  grantee  have  remained  in  undisturbed  posses- 
sion of  the  premises  under  covenants  of  warranty,  no  proceed- 
ings having  been  taken  for  eviction  and  no  adverse  title  hav- 
ing been  asserted. ^^ 

§  475,  Tenants  in  common.  As  between  tenants  in  common 
of  real  property,  where  one  co-tenant  has  attempted  to  mort- 
gage the  entire  estate  and  the  mortgage  has  been  foreclosed, 
it  is  proper  to  enjoin  a  sale  of  the  premises  upon  the  appli- 
cation of  his  co-tenants,  until  partition  may  be  made  between 
the  co-tenants,  the  mortgagor  being  alleged  to  be  insolvent.^'' 

12  Powell  V.  Hopkins,  38  Md.,  1.         is  Harding   v.    Commercial   Loan 

13  Lee   V.    Packard,    25    La.    An.,     Co.,  84   111.,  251. 

397.  16  Hines   v.   Munnerlyn,    57   Ga., 

1-1  Bailey  c.  Simpson,  57  Ga.,  523.     32. 


432  INJUNCTIONS.  [chap.  VII. 

§  476.  Foreign  corporation  not  enjoined  from  mortg-aging 
its  property.  Substantial  injury  to  the  rights  of  the  party  com- 
plaining being  an  element  which  must  always  be  made  to  ap- 
pear to  the  satisfaction  of  a  court  of  equity  before  it  will 
grant  an  injunction,  a  foreign  corporation  will  not  be  enjoined 
at  the  suit  of  a  creditor  from  mortgaging  its  property  to  se- 
cure an  issue  of  bonds  where  it  is  not  shown  that  the  mortgage, 
if  executed,  would  impair  such  creditor's  rights;  and  having 
no  lien  upon  the  property  which  is  to  be  mortgaged,  he  stands 
in  no  better  position  than  other  general  creditors,  and  is  not 
entitled  to  an  injunction.!^- 

§  477.  Bill  of  sale  in  nature  of  mortgage.  Where  the  pri- 
mary object  of  the  action  is  to  have  an  instrument  purport- 
ing to  be  a  bill  of  sale  declared  a  mortgage,  and  to  have  it 
canceled  and  for  an  accounting,  an  injunction  to  restrain  the 
sale  or  disposition  of  the  goods  covered  by  the  bill  of  sale 
is  an  appropriate  remedy  as  ancillary  to  the  principal  relief 
sought.!^ 

17  Rogers  V.  Michigan  Southern  is  Laeber  v.  Langhor,  45  Md.,- 
R.  Co..  38  Barb.,  539.  477. 


€HAP.  VII.]  PERTAINING  TO  MORTGAGES.  433 


IV.     Waste  of  Mortgaged  Premises. 

§  478.  Waste  by  mortgagor  may  be  enjoined. 

479.  Grounds  of  the  relief. 

480.  Cutting  of  timber;  removal  of  timber. 

481.  Removal  of  fixtures,  buildings  and  machinery. 

482.  When  mortgagor   denied  relief. 

483.  Rights  of  mortgagee  against  alienee  of  mortgagor. 

§  478.  Waste  by  mortgagor  may  be  enjoined.  The  jurisdic- 
tion of  equity  to  restrain  the  commission  of  waste  by  the  mort- 
gagor in  possession  is  clearly  established  from  the  authorities 
and  is  exercised  for  the  purpose  of  preventing  such  acts  as 
would  depreciate  the  value  of  the  premises  and  render  the 
security  insufficient.  The  rights  of  the  mortgagee  being  in 
their  nature  purely  equitable  and  to  be  enforced  by  proceed- 
ings in  equity,  it  would  be  falling  short  of  the  demands  of 
justice  if  a  court  of  equity  could  not  in  a  proper  case  inter- 
fere by  injunction  to  protect  the  property  which  is  the  sub- 
ject of  controversy  from  destruction.^  It  is  not  necessary 
that  the  mortgage  should  be  due  to  warrant  the  relief,  and 
the  court  may,  if  necessary,  interfere  before  the  mortgage 
is  due,2  or  after  forfeiture  on  the  part  of  the  mortgagor  and 
after  a  right  of  action  has  accrued.^  And  the  fact  that  the 
mortgagor  has  been  declared  a  bankrupt  and  that  his  property 
is  vested  in  the  hands  of  an  assignee  affords  strong  founda- 
tion for  the  exercise  of  the  jurisdiction.* 

§  479.  Grounds  of  the  relief.  The  interfereiice  of  equity  to 
prevent  the  commission  of  waste  by  the  mortgagor  in  pos- 

1  Brown  v.   Stewart,   1   Md.  Ch.,  Exhibition  Co.,  188  111.,  19,  58  N. 

S7;    Maryland   v.   Northern    C.    R.  E.,  611. 

Co.,  18  Md.,  193;     Ensign    v.    Col-  2  Murdock's  Case,  2  Bland,  461; 

burn,  11  Paige,  503;  Gray  v.  Bald-  Salmon  r.  Clagett,  3  Bland,  126. 

win,    8    Blackf.,    164;     Bunker    v.  s  Maryland    v.    Northern    C.    R. 

Locke,  15   Wis.,  635;    Real   Estate  Co.,  18  Md.,  193. 

T.  Co.  i\  Hatton,  194  Pa.  St.,  449,  *  Ensign    v.    Colburn,    11    Paige, 

45  Atl.,  379;   Williams  r.  Chicago  503. 
28 


434  INJUNCTIONS.  [chap.  VII. 

session  rests  upon  two  grounds:  first,  the  right  of  the  mort- 
gagee to  the  protection  of  the  entire  security  unimpaired  dur- 
ing the  life  of  the  mortgage;^  and,  second,  that  as  between 
mortgagor  and  mortgagee  the  latter  is  deemed  in  equity  the 
owner  of  the  fee,  and  as  such  entitled  to  protection.^  But  even 
where  the  mortgagee  is  not  considered  as  the  owner  of  the 
fee  he  is  entitled  to  the  protection  of  equity  against  the  com- 
mission of  waste.'^  Thus,  where  it  is  held  that  the  mortgage 
is  merely  a  security  for  the  debt  the  relief  will  be  allowed  to 
prevent  the  destruction  of  the  security.^  But  if  the  injury 
complained  of  is  such  that  it  may  be  adequately  compensated 
in  damages  in  an  action  at  law,  equity  will  not  interpose  in 
the  absence  of  any  allegations  of  insolvency .'^ 

§  480.  Cutting-  of  timber ;  removal  of  timber.  The  principal 
ground,  however,  upon  which  equity  interferes  to  enjoin  the 
commission  of  waste  by  a  mortgagor  in  possession  is  the  im- 
pairment of  the  security,  the  land  itself  being  regarded  as  the 
primary  fund  for  the  payment  of  the  debt.  And  when  the 
mortgagor  in  possession  is  committing  waste  by  the  cutting 
of  timber  to  such  an  extent  as  to  seriously  impair  the  mort- 
gage security,  an  appropriate  case  for  an  injunction  is  pre- 
sented, even  though  the  mortgagor  is  not  shown  to  be  insol- 
vent. If,  therefore,  the  threatened  injury  is  irreparable  in  its 
nature,  as  in  the  cutting  of  timber,  and  so  impairs  the  mort- 
gage security  as  to  render  it  inadequate,  the  mortgagee  may 
have  an  injunction  without  averring  or  proving  the  insolvency 
of  the  mortgagor.io     So  upon  a  bill  to  foreclose  his  mortgage, 

5  Nelson  v.  Pinegar,  30  111.,  473;  »  Robinson  v.  Russell,  24  Cal., 
Fairbank  v.  Cudworth,  33  Wis.,  467.  For  further  consideration  of 
358.       ^r  the  subject  of  waste  committed  by 

6  Nelson  v.  Pinegar,  30  111.,  473.  mortgagor  in  possession,  see  chap- 

7  Brady  v.  Waldron,  2  Johns.  Ch.,  ter  XI,  post. 

148.  1"  Fairbank  r.  Cudworth,  33  Wis., 

«  Cooper  r.  Davis,  15  Conn.,  561;  358;    Starks    v.    Redfield,    52   Wis., 

Murdock's  Case,  2  Bland,  461;  Sal-  349. 
mon  V.  Clagett,  3  Bland,  126. 


CHAP.  VII.]  PERTAINING  Ta  MORTGAGES.  435 

llie  mortgagee  is  entitled  to  the  aid  of  an  injunction  to  re- 
strain the  mortgagor  in  possession  from  cutting  timber  upon 
the  premises,  when  it  is  shown  that  the  land  without  the  tim- 
ber is  a  scanty  and  insufficient  security  for  the  debt.^^  So  the 
purchaser  of  mortgaged  premises  at  a  sale  under  a  foreclosure 
may  have  an  injunction  against  a  terre-tenant  holding  under 
the  mortgagor,  to  restrain  him  from  committing  waste  by  the 
destruction  of  timber,  to  the  serious  injury  of  the  premises, 
such  purchaser  being  as  clearly  entitled  to  the  relief  as  a  mort- 
gagee himself  would  be.^-  While,  however,  equity  may  prop- 
erly enjoin  the  commission  of  waste  by  the  mortgagor,  con- 
sisting in  the  cutting  of  timber  which  was  standing  or  grow- 
ing at  the  time  of  service  of  the  injunction,  it  will  not  restrain 
the  removal  from  the  premises  of  timber  already  cut  before 
such  service,  when  there  is  no  averment  of  the  mortgagor's 
insolvency,  and  no  evidence  of  fraud,  and  when  it  does  not 
appear  that  there  is  no  redress  at  law.^^ 

§  481.  RemovaJ  of  fixtures,  buildings  and  machinery.  A 
court  of  equity  may  likewise  interfere  by  injunction  to  re- 
strain the  commission  of  waste  upon  the  mortgaged  premises 
by  the  removal  of  fixtures  and  implements  included  in  the 
mortgage,  when  such  removal  w^ould  have  the  effect  of  impair- 
ing the  security.^  ^  And  as  between  the  mortgagor  and  mort- 
gagee, equity  may  interpose  by  injunction  to  prevent  the 
severance  and  removal  from  the  mortgaged  real  estate  of  a 
frame  building  which  forms  a  part  of  the  realty,  and  which 

11  Humphreys  v.  Harrison,  1  Jac.  New  York  code  of  procedure,  when 
&  W.,  581.  after  a  foreclosure  sale,  but  before 

12  Thompson  v.  Lynam,  1  Del.  its  confirmation,  the  mortgagor  in 
Ch.,  64.  possession  attempts  to  remove  ma- 

13  Bank  of  Chenango  v.  Cox,  1  chinery  from  the  premises,  which 
C.  E.  Green,  452.  the    purchaser    claims  ^H"  part    of 

i-*  Robinson  v.  Preswick,  3  Edw.  the  realty,  the  mortgagor  may  be 

Ch.,  247;   Williams  v.  Chicago  Ex-  enjoined.     Mutual  Life  Ins.  Co.  v. 

hibition  Co.,  188  111.,  19,  58  N.  E.,  National    Bank    of    Newburgh,    18 

611.     See  also  Dudley  r.  Hurst,  67  Hun,  371. 
Md.,  44,  8  All.,  901.    And  under  the 


436  INJUNCTIONS.  [chap.  VII. 

the  mortgagor  has  conveyed  to  a  purchaser  who  is  seeking 
its  removal.  Tlie  remedy  by  injunction  is  regarded  as  espe- 
cially appropriate  in  such  a  case,  since  an  action  for  damages 
would  not  afford  adequate  relief.^  "^  Nor  is  the  relief  for  the 
prevention  of  this  species  of  waste  restricted  to  cases  of  strict 
mortgages,  but  it  may  be  extended  in  a  proper  case  in  aid 
of  the  holder  of  a  contract  in  the  nature  of  a  mortgage.  And 
when  in  a  proceeding  to  foreclose  such  a  contract  it  is  shown 
that  part  of  the  machinery  and  fixtures  included  in  the  con- 
tract and  covered  by  the  lien  have  been  removed  from  the 
premises,  and  have  been  levied  upon  under  judgments  and 
proceedings  in  attachment,  such  removal  rendering  plaintiff's 
security  inadequate,  it  is  proper  to  enjoin  the  sale  or  dispo- 
sition of  such  fixtures  and  machinery,  notwithstanding  their 
severance  and  removal  from  the  realty.^  *^  So  the  purchaser 
at  a  foreclosure  sale  may  restrain  the  mortgagor  from  re- 
moving from  the  mortgaged  premises  machinery  which  the 
purchaser  claims  to  be  covered  by  the  mortgage,  the  relief 
being  proper  in  such  case  until  the  question  of  title  to  such 
alleged  fixtures  may  be  determined.^ '^ 

§  482.  When  mortgagor  denied  relief.  In  conformity  with 
the  general  rule  denying  relief  by  injunction  where  adequate 
remedy  exists  at  law,  a  mortgagor  will  not  be  allowed  to  enjoin 
the  enforcement  of  the  mortgage  upon  the  ground  of  waste 
by  the  mortgagees  in  the  management  of  other  premises  leased 
to  them  by  the  mortgagor  as  additional  security  for  the  debt, 
when  full  redress  for  such  mismanagement  may  be  had  by  pro- 
ceedings at  law  for  that  puri)ose.^^ 

§483.  Rights  of  mortgagee  against  alienee  of  mortgagor. 
To  warrant  an   injunction  in  behalf  of  a   mortgagee  not   in 

15  State  Savings  Bank  r.  Kerche-  i7  Mutual  Life  Ins.  Co.  v.  Bigler, 
val,    65    Mo.,    682.  79   N.   Y.,  568. 

16  Kimball  v.  Darling,  32  Wis.,  i«  Alston  v.  Wheatfey,  47  Ga.. 
€75.     And    to   the   same  effect  see  646. 

Taylor  r.   Collins,   51  Wis.,   123,   8 
N.    W..    22. 


CHAP.  VII.]  PERTAINING  TO  MORTGAGES.  437 

possession  against  an  alienee  of  the  mortgagor,  there  must 
be  some  substantial  injury  shown  to  the  freehold,  of  such  a 
nature  as  to  impair  the  mortgage  security.  And  the  removal 
from  the  premises  of  decayed  rails  and  of  the  scattered  planks 
of  a  building  which  has  fallen  by  reason  of  its  own  decay,  does 
not  constitute  such  waste  as  to  justify  relief  by  injunction.^^ 

19  Coker  v.  Whitlock,  54  Ala.,  180. 


CHAPTER  VIII. 

OF  INJUNCTIONS  AGAINST  TAXES. 

I.  Principles  Governing  the  Jurisdiction §  484 

II.  Cloud  upon  Title 524 

III.  Property    Exempt  From  Taxation 530 

IV.  Municipal   Taxation    536 

V.  Municipal-Aid  Taxes 561 

VI.     Bounties 570 

VII.     Parties   573 

I.     Principles  Governing  the  Jurisdiction. 

§  484.  Conflict  of  authority. 

485.  Weight  of   authority   averse  to  interference;    exceptions. 

486.  Injunction    not   allowed   for    irregularities. 

487.  Equity  powerless  to  correct  tax. 

488.  Irregularities  in  assessment  no  ground  for  injunction. 

489.  Illustrations  of  irregularities  on  which  injunction  refused. 

490.  Errors  and  mistakes  of  officers;   distinction  between  void  and 

voidable  tax. 
490c.  When  overvaluation  no  ground  for  injunction. 

491.  Remedy  at  law;    irreparable  injury;   insolvency  of  assessor. 

492.  Further  illustrations   of  the  general   doctrine. 

493.  Boards  of  review   or  equalization,  their  action  not  revised  in 

equity;   mandamus;  when  appeal  to  board  unnecessary. 

494.  Fraudulent  conduct  or  excess  of  authority  by  board  of  equaliza- 

tion ground  for  injunction. 

495.  Want  of  notice  to  taxpayer  of  increased  valuation. 

496.  Unconstitutionality  of  law,  conflict  of  authority. 

497.  Payment  or  tender  of  legal  tax  a  condition  to  relief. 

498.  The  rule  illustrated;  not  applicable  to  entire  illegal  assessment. 

499.  The  rule  as  affected  by  legislation. 

500.  Fraud  as  a  ground  for  relief;  when  purged  by  appeal. 
500a.  Arbitrary    discrimination    in   assessment. 

501.  Omission  of  officer  to  take  oath  or   to  give  bond. 

502.  Want  of  power,  ground   for  injunction;   former  judgment  sus- 

taining tax. 

503.  The  Illinois  doctrine. 

504.  The  Wisconsin  doctrine. 

438 


CHAP.  VIII.]  AGAINST  TAXES.  439 

§  505.  Personal  property  tax  not  enjoined;   mill  property;   payment; 
exceptions  to  rule. 

506.  Tax  upon  capital  stock  and  franchises  of  corporations. 

507.  Taxation   of  national   banks. 

508.  Internal  revenue  taxes. 

509.  Levy  on  property  for  tax  of  another. 

510.  Effect  of  legislation  curing  defects. 

511.  Preliminary  proceedings;   extending  tax  on  books. 

512.  Payment  of  taxes;    set-off. 

513.  Refusal  of  collector  to  receive  amount  fixed  by  arbitration. 

514.  Recoupment  of  taxes  not  allowed. 

515.  Refusal  of  injunction  confers  no  authority;    decree  void  as  to 

subsequent  taxes. 

516.  Unincorporated   company;    illegal   contracts  for  improvements. 

517.  When  personal  property  to  be  first  taken. 

518.  When  cause  of  action   partly  good. 

519.  Injunction  refused  pending  mandamus  to  allow  appeal;  insuffi- 

cient bond  on  appeal. 

520.  Franchises. 

521.  Depreciation  of  property  no  ground  for  injunction. 

522.  When  sale  of  personal  property  enjoined. 

523.  Homestead  entry. 

523a.  Taxation  of  railway  property. 

523 &.  Property  assessed  in  one  place  but  taxable  at  another. 

§  484.  Conflict  of  authority.  Upon  no  breach  of  the  law  of 
injunctions  has  there  been  manifested  greater  apparent  want 
of  harmony  in  the  decisions  of  the  courts  than  that  pertain- 
inji'  to  the  exercise  of  the  jurisdiction  in  restraint  of  taxation. 
While  it  is  not  difficult  to  deduce  from  the  great  mass  of  au- 
thorities bearing  upon  the  general  subject  certain  cardinal 
principles  which  may  be  said  to  have  the  weight  of  authority 
in  their  support,  yet  it  is  difficult,  if  not  impossible,  to  com- 
pletely and  perfectly  harmonize  these  principles  with  all  the 
decided  cases.  And  the  most  patient  and  painstaking  analysis 
must  still  fail  to  reconcile  the  opinions  of  many  of  the  most 
respectable  courts  with  the  more  generally  received  doctrines 
governing  applications  for  preventive  relief  in  restraint  of 
the  taxing  power.  Upon  the  one  hand,  acting  upon  the  prin- 
ciple that  a  tax  illegally  or  improperly  imposed  confers  no 
authority  upon  the  officer  who  attempts  its  enforcement,  but 


440  INJUNCTIONS,  [chap.  VIII. 

renders  him  a  mere  trespasser,  liable  in  an  action  at  law  for 
the  damages  incurred,  and  upon  the  kindred  principle  that  all 
grievances  sustained  in  the  exercise  of  the  taxing  power 
should  be  remedied  at  law  and  not  in  equity,  the  courts  have 
in  most  cases  been  averse  to  granting  preventive  relief 
against  the  collection  of  the  revenue,  and  have  preferred  to 
leave  the  parties  complaining  to  the  ordinary  legal  remedies. 
Upon  the  other  hand,  the  decisions  are  neither  few  in  num- 
ber nor  w^anting  in  respectability  which  have  inclined  to  a 
departure  from  the  doctrine  of  non-interference  in  equity  with 
the  collection  of  taxes;  and  it  will  be  found,  as  we  proceed,, 
that  the  courts  have  in  many  instances  extended  preventive^ 
relief  by  injunction  against  the  exercise  of  the  taxing  power 
in  cases  where  such  relief  was  unwarranted,  either  upon  prin- 
ciple or  upon  the  clear  weight  of  authority.^ 

§485.  Weight  of  authority  averse  to  interference;  excep- 
tions. As  already  indicated,  the  decided  w^eight  of  authority 
is  plainly  averse  to  equitable  interference  wuth  the  exercise  of 
the  taxing  power  in  the  ordinary  process  of  the  collection  of 
the  revenue.  And  it  may  be  laid  down  as  a  general  rule  that 
equity  will  not  interfere  by  injunction  with  the  collection 
of  a  tax  which  is  alleged  to  be  illegal  or  void,  merely  because 
of  its  illegality,  hardship  or  irregularity,  but  there  must  be- 
some  special  circumstances  attending  the  threatened  injury  to 
distinguish  it  from  a  mere  trespass,  and  thus  to  bring  the  case 
within  some  recognized  head  of  equity  jurisprudence;  other- 
wise the  person  aggrieved  will  be  left  to  his  remedy  at  law.^^ 

1  For  an   exceedingly  clear   and  Rep.,     646,     reversing     S.     C,     39 

satisfactory  discussion  of  the  sub-  Fed.,    712;    Allen   v.   Car   Co.,   139 

ject  of  this  chapter,  see  Cooley  on  U.     S.,     658,      11     Sup.    Ct.    Rep., 

Taxation,  536  et  seq.  682;     Pacific  Express    Co.    v.    Sei- 

2D0WSV.  Chicago,  11  Wal.,  108;  bert,  142  U.  S.,    339,    12    Sup.    Ct. 

Hannewinkle     v.    Georgetown,     15  Rep.,  250,  affirming  S.  C,  44  Fed., 

Wal.,    547;     State    Railroad     Tax  310;    Pittsburg,  etc.,  Ry.  v.  Board 

Cases,    2    Otto,    575;     Shelton    v.  of     Public     Works,     172     U.     S., 

Piatt,  139  U.   S.,  591,  11   Sup.  Ct.  32,  19  Sup.  Ct.  Rep.,  90;  Arkansas 


CHAP.  VIII.] 


AGAINST  TAXES. 


44] 


An  exception  to  the  rule  has  been  allowed  in  cases  where  the 
proceedings,  though  illegal  and  void,  were  under  legal  color 


Building  Ass'n  v.  Madden,  175  U. 
S.,  269,  20  Sup.  Ct.  Rep.,  119;  In- 
diana Mfg.  Co.  V.  Koehne,  188  U. 
S.,  681,  23  Sup.  Ct.  Rep.,  452;  Rob- 
inson V.  City  of  Wilmington,  13  C. 
C.  A.,  177,  65  Fed.,  856;  Hoey  v. 
Coleman,  46  Fed.,  221;  Nye  v. 
Town  of  Washburn,  125  Fed.,  817; 
Williams  v.  Button,  184  111.,  608, 
56  N.  E.,  868;  Alabama  Gold  Life 
Insurance  Co.  v.  Lott,  54  Ala.,  499; 
Hey  wood  v.  Buffalo,  14  N.  Y.,  534; 
Susquehanna  Bank  t\  Supervisors 
of  Broome  Co.,  25  N.  Y.,  312;  Mu- 
tual Benefit  Life  Insurance  Co.  v. 
Supervisors,  33  Barb.,  322;  Burnes 
r.  Mayor,  2  Kan.,  454;  Sayre  v. 
Tompkins,  23  Mo.,  443;  Barrow  v. 
Davis,  46  Mo.,  394;  McPike  v.  Pew, 
48  Mo.,  525;  Warden  v.  Supervisors, 
14  Wis.,  618;  Kellogg  v.  Oshkosh, 
lb.,  623;  Clarke  tJ.  Ganz,  21  Minn., 
387;  Western  R.  Co.  v.  Nolan,  48 
N.  Y.,  513;  Wells  v.  Dayton,  11 
Nev.,  161;  Bogert  v.  City  of  Eliza- 
beth, 10  C.  E.  Green,  427;  McClung 
V.  Livesay,  7  West  Va.,  329;  Doug- 
lass V.  Town  of  Harrisville,  9  West 
Va.,  162;  Wilson  v.  Town  of  Phil- 
ippi,  39  West  Va.,  75,  19  S.  E.,  553; 
Blue  Jacket  C.  C.  Co.  r.  Scherr,  50 
West  Va.,  533,  40  S.  E.,  514;  Hark- 
ness  V.  Board  of  Public  Works,  1 
McArthur,  121;  City  Council  v. 
Eayre,  65  Ala.,  564;  Greenhood  v. 
MacDonald,  183  Mass.,  342,  67  N. 
E.,  336;  Minneapolis,  etc.  Ry.  Co. 
r.  Dickey  County,  11  N.  Dak..  107, 
90  N.  W.,  260;  Welch  v.  Clatsop 
County,  24  Ore.,  452,  33  Pac,  934; 
Insurance  Co.  v.  Bouner,  24  Col., 
220,   49   Pac,    366;    Bellevue   Imp. 


Co.  V.  Village  of  Bellevue,  39  Neb., 
876,  58  N.  W.,  446.  But  see, 
contra,  Williams  v.  Peinny,  25 
Iowa,  436;  Jeffersonville  v.  Patter- 
son, 32  Ind.,  140;  Fahlor  v.  Board 
of  Commissioners,  101  Ind.,  167; 
Hobbs  V.  Board  of  Commissioners, 
103  Ind.,  575,  3  N.  E.,  263;  Board  of 
Commissioners  v.  Barker,  25  Kan., 
258;  Topeka  City  Ry.  Co.  v.  Rob- 
erts, 45  Kan.,  360,  25  Pac,  854; 
Topeka  W.  S.  Co.  v.  Roberts,  45 
Kan.,  363,  25  Pac,  855;  St.  Louis  & 
S.  F.  R.  Co.  V.  Apperson,  97  Mo.,  300, 
10  S.  W.,  478;  Chicago,  B.  &  Q.  R. 
Co.  V.  Cass  County,  51  Neb.,  369, 
70  N.  W.,  955;  Chicago,  B.  &  Q.  R. 
Co.  V.  Nebraska  City,  53  Neb.,  453, 
73  N.  W.,  952;  Penick  v.  High  S. 
Mfg.  Co.,  113  Ga.,  592,  38  S.  E., 
973;  Wood  v.  Draper,  24  Barb., 
187;  S.  C,  4  Ab.  Pr.,  322,  where  it 
is  held  that  a  tax  contrary  to  law, 
or  levied  without  authority  of  law, 
may  be  enjoined,  although  in  the 
latter  case  the  relief  was  denied 
because  complainant  had  not  aver- 
red in  his  bill  that  it  was  filed  in 
behalf  of  all  others  similarly  situ- 
ated, the  court  holding  that  such 
an  averment  was  necessary  to  a 
complete  determination  of  the 
rights  of  the  parties.  In  Heywood 
V.  Buffalo,  14  N.  Y.,  534,  it  is  held 
that  three  exceptions  exist  to  the 
rule,  as  stated  in  the  text:  first, 
where  the  proceedings  will  neces- 
sarily lead  to  a  multiplicity  of 
suits;  second,  where  they  lead  in 
their  execution  to  the  commission 
of  irreparable  injury  to  the  free- 
hold;   third,    where   the   claim   of: 


442 


INJUNCTIONS. 


[chap.  VIII. 


and  apparently  authorized  by  law.^  So  where  there  was  an 
entire  absence  of  authority  for  the  assessment  of  the  tax,  or 
for  proceedings  thereunder,  the  relief  has  been  granted.  Thus, 
a  sheriff  whose  term  of  office  has  expired  has  been  enjoined 
from  selling  property  in  satisfaction  of  the  tax,  which  he 
might  rightfully  have  done  during  his  term."*  And  a  tax  levied 
without  authority  by  a  corporation,  or  by  persons  acting  as 
such,  may  be  enjoined/''  So  where  the  officers  levying  the  tax 
were  improperly  elected  and  their  action  is  therefore  void,*'  or 
where  the  tax  is  levied  by  less  than  the  requisite  majority  of 
a  board  of  supervisors  intrusted  with  the  taxing  power,  an 
injunction  may  be  allowed."  So  also  an  injunction  will  be 
granted  against  a  tax  based  upon  an  increase  in  plaintiff's 
assessment  made  by  a  board  of  review  after  the  expiration  of 


the  adverse  party  to  the  land  sold 
for  the  unpaid  taxes  is  valid  upon 
the  face  of  the  instrument,  or  the 
proceedings  sought  to  be  set 
aside  are  valid  upon  their 
face  and  intrinsic  facts  are 
necessary  to  be  proven  in  order  to 
establish  the  invalidity  or  illegal- 
ity. "Whenever,"  say  the  court,  "a 
case  is  made  by  the  pleadings  fall- 
ing within  these  exceptions,  or 
either  of  them,  equity  will  inter- 
pose to  arrest  the  excessive  litiga- 
tion, or  prevent  the  irreparable  in- 
Jury,  or  remove  the  cloud  from  the 
title."  However  clear  and  satis- 
factory this  statement  of  the  ex- 
ceptions to  the  rule  may  appear, 
u  will  be  found  as  we  proceed  that 
it  does  not  comprehend  all  the  rec- 
ognized exceptions,  and  a  serious 
conflict  of  authority  may  be  ob- 
served running  through  all  the 
cases. 

•^  Burnet  r.  Cincinnati,  ?,  Ohio, 
73;  Culbertson  r.  Same,  KJ  Ohio, 
o74;   .Tonas  r.  Same,  18  Ohio,  318; 


McDonald  v.  Murphree,  45  Miss., 
705;  Coulson  v.  Harris,  43  Miss., 
728.  But  this  exception  has  been 
denied  in  McCoy  i\  Chillicothe,  3 
Ohio,   370. 

4  Fremont  v.  Boling,  11  Cal.,  380. 
And  see  Durham  v.  Linderman,  10 
Okla.,  570,  64  Pac,  15,  where,  in  a 
similar  case,  an  injunction  was 
granted  under  the  provisions  of  a 
statute  authorizing  such  relief 
against  a  levy  under  an  illegal  tax 
or  against  any  proceeding  to  col- 
lect the  same. 

5  Beverly  v.  Sabin,  20  111.,  357; 
Ottawa  V.  Walker,  21  111.,  610.  It 
is  difficult,  however,  to  perceive 
any  sufficient  reason  why  the  relief 
should  be  granted  in  such  cases, 
since  the  persons  thus  assuming 
to  enforce  the  tax  without  author- 
ity are  trespassers,  and  are  liable 
at  law  for  the  damages  incurred. 

>>  Kinyon  v.  Duchene,  21  Mich., 
498. 

~  Supervisors  i\  Webster,  53  111., 
141. 


CHAP.  VllI.J  AGAINST  TAXES.  443 

their  session  as  fixed  by  law.^  So  equity  will  restrain  a  county 
clerk  from  extending'  a  school  tax  levied  by  school  directors 
upon  property  in  a  school  district  where  their  jurisdiction  had 
previously  ceased.^  These  exceptions,  however,  with  others 
to  be  noticed  hereafter,  only  serve  to  emphasize  the  general 
doctrine  as  above  stated,  and  it  may  now  be  accepted  as  the 
established  rule  that  equitable  relief  will  not  be  allowed  because 
of  mere  illegalities,  such  as  excess  in  valuation,  or  because 
of  the  hardship  and  injustice  of  the  law  under  which  the  taxing 
power  is  exercised. ^*^  In  the  absence,  therefore,  of  some  cir- 
cumstances to  bring  the  case  within  some  of  the  well  defined 
heads  of  equity  jurisdiction,  preventive  relief  will  not  be  ex- 
tended merely  upon  the  ground  of  the  illegality  or  hardship 
of  the  tax,  and  for  all  such  grievances  the  taxpayer,  if  en- 
titled to  any  remedy,  should  seek  it  in  a  legal  rather  than  an 
equitable  forum.  And  the  federal  courts  sitting  in  equity  in 
the  different  states  interfere  with  extreme  caution  with  the 
collection  of  the  revenue  of  the  states,  or  of  their  public  or  mu- 
nicipal agencies,  and  will  not  interfere  by  injunction  unless  in 
a  plain  case  of  equitable  jurisdiction  and  of  great  injury  for 
which  there  is  no  adequate  remedy  at  law.^^  Where,  however, 
the  legal  remedy  is  inadequate  for  the  proper  protection  of 
the  plaintiff' 's  rights,  a  federal  court  may  properly  restrain  the 
enforcement  of  an  illegal  tax  levied  by  state  authority.  Thus, 
where  resort  to  the  legal  remedy  would  subject  the  taxpayer 
to  a  multiplicity  of  separate  actions  against  each  of  the  several 
taxing  municipalities  for  the  recovery  of  the  illegal  tax,  equi- 
table relief  is  properly  granted.^-     So  where  the  legal  remedy 

8  Yocum  V.  Bank,  144  Ind.,  272,  n  Union  Pacific  R.  Co.  v.  Lincoln 
43  N.  E.,  231.  Co.,  2  Dill.,  279.    And  see  as  to  the 

9  School  Directors  v.  School  Di-  right  to  enjoin  a  state  tax  in  the 
rectors,  135  111.,  464,  28  N.  E.,  49.  federal    courts,    Wells    v.    Central 

10  Hannewinkle    v.    Georgetown,     Vermont  R.  Co.,  14  Blatch,  426. 

15  Wal.,  547;    State  Railroad  Tax         12  Pyle   v.   Brenneman,   60   C.   C. 
Cases,  2  Otto,  575;    Alabama  Gold     A.,  409,  122  Fed.,  787. 
Life  Insurance  Co.  v.  Lott,  54  Ala., 
499;  Gage  v.  Evans,  90  111.,  569. 


444 


INJUNCTIONS. 


[chap.  VIII. 


depends  for  its  adequacy  entirely  upon  the  will  of  the  oppos- 
ing party,  it  is  not  regarded  as  adequate  within  the  meaning 
of  the  rule  and  relief  by  injunction  will  therefore  be  allowed.^^ 

§  486.  Injunction  not  allowed  for  irregularities.  Nor  will 
equity  interfere  by  injunction  with  the  enforcement  or  col- 
lection of  taxes  because  of  irregularities,  illegalities  or  errors 
in  the  assessment  of  the  tax,  or  in  the  proceedings  incident 
to  its  collection,  or  in  the  execution  of  the  power  conferred 
upon  taxing  officers,  but  in  all  such  cases  the  taxpayer  seek- 
ing relief  will  be  left  to  pursue  his  remedy  at  law.^*     And 


12  Bank  of  Kentucky  r.  Stone,  88 
Fed.,  383. 

i-t  Clinton,  etc..  Appeal,  56  Pa. 
St.,  315;  O'Neal  v.  Virginia  B.  Co., 
18  Md.,  1;  Livingston  r.  Hollen- 
beck,  4  Barb.,  9;  Macklot  v.  Daven- 
port, 17  Iowa,  379;  Center  Co.  v. 
Black,  32  Ind.,  468;  Warden  r.  Sup- 
ervisors, 14  Wis.,  618;  Kellogg  v. 
Oshkosh,  lb.,  623;  Exchange  Bank 
V.  Mines,  3  Ohio  St.,  1;  Jackson  i\ 
Detroit,  10  Mich.,  248;  Williams  v. 
Mayor,  2  Mich.,  560;  Greene  v. 
Mumford,  5  R.  I.,  472;  Schofield  v. 
Watkins,  22  111.,  66;  Chicago,  B.  & 
Q.  R.  Co.  V.  Frary,  lb.,  34;  Merritt 
r.  Farris,  lb.,  303;  Munson  v.  Min- 
or, lb.,  594;  Metz  v.  Anderson,  23 
III.,  463;  Hallenbeck  r.  Hahn,  2 
Neb.,  377;  Iowa  Railroad  Land  Co. 
V.  County  of  Sac,  39  Iowa,  124 
Same  v.  Carroll  Co.,  39  Iowa,  151 
Gay  V.  Hebert,  25  La.  An.,  196 
Challiss  r.  Commissioners  of  Atch- 
ison Co.,  15  Kan.,  49;  Stebbins  v. 
Challiss,  15  Kan.,  55;  Supervisors 
V.  Jenks,  65  111.,  275;  Swinney  v. 
Beard,  71  111.,  27;  George  v.  Dean, 
47  Tex.,  73;  Hall  r.  Houston  &  T. 
C.  R.  Co.,  39  Tex.,  286;  Whittaker 
V.  City  of  Janesville,  33  Wis.,  76; 


Brown  i\  Herron,  59  Ind.,  61;  City 
of  Delphi  V.  Bowen,  61  Ind.,  29; 
Western  R.  Co.  v.  Nolan,  48  N.  Y., 
513;  Parker  v.  Challis,  9  Kan.,  155; 
Smith  V.  Commissioners  of  Leaven- 
worth, lb.,  296;  City  of  Lawrence  v. 
Killam,  11  Kan.,  499;  Coulson  v. 
Harris,  43  Miss.,  728;  Albany  &  B. 
M.  Co.  V.  Auditor-General,  37  Mich., 
391;  Rio  Grande  R.  Co.  v.  Scanlan, 
44  Tex.,  649;  Adams  r.  Beman,  10 
Kan.,  37;  Finnegan  v.  City  of  Fer- 
nandina,  15  Fla.,  379;  Huck  v.  Chi- 
cago &  Alton  R.  Co.,  86  111.,  352; 
Chicago,  B.  &  Q.  R.  Co.  v.  Siders, 
83  111.,  320;  Floyd  r.  Gilbreath,  27 
Ark.,  675;  Murphy  v.  Harbison,  29' 
Ark.,  340;  Savings  &  Loan  Society 
V.  Austin,  46  Cal.,  415;  Houghton 
t?.  Austin,  47  Cal.,  646;  Central  Pa- 
cific R.  Co.  V.  Corcoran,  48  Cal.,  65; 
Dean  r.  Davis,  51  Cal.,  406;  Rock- 
ingham Savings  Bank  v.  Ports- 
mouth, 52  N.  H.,  17;  Brown  v.  Con- 
cord, 56  N.  H.,  375;  Union  Trust 
Co.  V.  Weber,  96  111.,  346;  People's 
Savings  Bank  v.  Tripp,  13  R.  I., 
621;  Keigwin  r.  Drainage  Commis- 
sioners, 115  111.,  347,  5  N.  E.,  575; 
Kansas  City,  F.  S.  &  G.  R.  Co.  v. 
Tontz,  29  Kan.,  460;  Ryan  t'.  Board. 


<HAP.  VIII.] 


AGAINST  TAXES. 


445 


■where  it  does  not  appear  that  the  established  principle  of  tax- 
ation has  been  violated,  or  that  actual  and  substantial  injustice 
will  result  from  the  operation  of  the  tax,  or  that  it  was  for  an 


•of  Commissioners,  30  Kan.,  185,  2 
Pac,  156;  Gillette  v.  City  of  Den- 
ver, 21  Fed.,  822;  Avant  v.  Flynn, 
2  S.  Dak.,  153,  49  N.  W.,  15;  Fifield 
V.  Marinette  Co.,  62  Wis.,  532,  22 
N.  W.,  705;  Wisconsin  Central  R. 
Co.  V.  Lincoln  Co.,  67  Wis.,  478,  30 
N.  W.,  619;  Hixon  v.  Oneida  Coun- 
ty, 82  Wis.,  515,  52  N.  W.,  445;  Hi- 
bernian Benevolent  Society  v.  Kel- 
ly, 28  Ore.,  173,  42  Pac,  3,  30  L.  R. 
A.,  167,  52  Am.  St.  Rep.,  769;  Boyd 
V.  Wiggins,  7  Okla.,  85,  54  Pac, 
411;  Sweet  r.  Boyd,  6  Okla.,  699, 
52  Pac,  939;  Reynolds  v.  Drainage 
District,  134  111.,  268,  25  N.  B.,  516; 
Lawrence  r.  Traner,  136  111.,  474, 
27  N.  E.,  197;  Earl  &  Wilson  v. 
Raymond,  188  III.,  15,  59  N.  E.,  19; 
Kimbark  v.  Raymond,  188  111.,  66, 
59  N.  E.,  1133;  Mayer  r.  Raymond, 

188  111.,  143,  59  N.  E.,  1133;  Ayers 
r.  Widmayer,  188  111.,  121,  58  N.  E., 
:956;  Martin  v.  Barnett,  188  111., 
■288,  58  N.  E.  977;  Pratt  v.  Ray- 
mond. 188  II!.,  469,  59  N.  E.,  16; 
American  Express  Co.  v.  Raymond, 

189  111.,  232,  59  N.  E.,  528;  Booth 
4&  Co.  r.  Raymond,  191  111.,  351,  61 
N.  E.,  129;  Equalization  Board  v. 
Land  Owners,  51  Ark.,  516,  11  S. 
W.,  822;  United  Lines  T.  Co.  v. 
Grant,  137  N.  Y.,  7,  32  N.  E.,  1005. 

The  grounds  upon  which  the  re- 
lief is  refused  in  cases  of  irregu- 
larity in  the  proceedings  are  very 
<'learly  stated  by  Caton,  C.  J.,  in 
Chicago  r.  Frary,  22  111.,  34,  as  fol- 
lows: "We  have  in  this  case  been 
called  on  to  inquire  in  what  cases 
the  powers  of  a  court  of  chancery 


may  be  exercised  to  restrain  the 
collection  of  the  revenue  of  the 
state.  The  decisions  of  this  court 
show,  that  in  a  large  majority  of 
the  cases  involving  the  regularity 
of  the  proceedings  for  the  collec- 
tion of  the  revenue,  we  have  met 
with  irregularities  in  the  proceed- 
ings to  such  an  extent  as  to  de- 
stroy the  titles  to  real  estate  ac- 
quired at  tax  sales.  In  this  way, 
has  a  court  of  common  law  afford- 
ed a  remedy  for  irregularities  in 
the  execution  of  the  revenue  laws. 
The  same  and  even  additional  re- 
dress is  afforded  to  parties  whose 
personal  property  is  seized  for  a 
tax  illegally  assessed.  If  in  all 
tuese  cases  the  court  of  chancery 
had  taken  the  matter  in  hand,  and 
examined  the  regularity  of  the  pro- 
ceedings whenever  an  attempt  was 
made  to  collect  the  revenue,  and 
restrained  its  collection,  if  it  were 
shown  that  the  law  had  not  been 
complied  with  in  the  assessment  of 
the  taxes,  the  result  would  have 
been  that  in  many  if  not  most 
cases  the  collection  of  the  revenue 
would  have  been  enjoined,  and 
taxes  would  not  have  been  col- 
lected. Under  such  a  system  of 
the  administration  of  the  laws, 
with  so  complicated  a  revenue  sys- 
tem as  ours,  rendered  so  by  a  ten- 
der regard  for  the  rights  and  in- 
terests of  the  citizen,  no  govern- 
ment could  exist  for  a  single  year. 
Let  us  now,  by  sustaining  this 
bill,  stretch  out  the  strong  arm  of 
this  court..and  stay  the  hand  of  the 


4-16 


INJUNCTIONS. 


[chap.  VIJI. 


imauthorized  purpose,  equity  will  not  restrain  the  execution  of 
a  deed  of  land  sold  for  taxes  on  the  ground  that  the  proceed- 


collector  in  every  case  where  any 
irregularity  can  be  shown  in  the 
assessment  of  the  revenue,  and  a 
flood  of  injunctions  would  be 
spread  over  the  land  at  once.  State 
and  county  revenue  would  cease 
to  be  collected,  at  least  till  the  ter- 
mination of  protracted  litigation, 
and  the  wheels  of  government 
would  stop.  It  is  no  answer  to 
say,  let  those  whose  duty  it  is  to 
administer  the  revenue  law  do  it 
with  greater  care,  and  do  every- 
thing which  the  law  requires,  just 
as  it  requires,  and  at  the 
time  specified,  and  be  careful  that 
they  do  no  more  than  is  required. 
We  must  take  things  as  they  are 
and  look  at  practical  results.  Neith- 
er precedents  nor  reason  will  war- 
rant the  use  of  the  writ  of  injunc- 
tion for  such  purposes,  and  to  pro- 
duce such  results.  Where  the  law 
affords  an  adequate  remedy  this 
writ  can  not  be  used,  and  espe- 
cially where  greater  mischief  will 
flow  than  good  will  result  from  it, 
the  court  will  always  withhold  this 
species  of  relief.  Equity  can  not 
attempt  to  prevent,  any  more  than 
it  will  redress  all  wrongs.  It  is 
not  in  ordinary  but  in  extraordin- 
ary cases  that  this  writ  is  properly 
invoked.  If  the  law  can  redress 
the  wrong — if  it  can  repair  the  in- 
jury, equity  must  suffer  it,  and  let 
the  courts  of  law  redress  it.  This 
is  the  general  rule  to  which  there 
are  no  doubt  exceptions,  and 
exceptions,  too,  in  cases  of 
the  collection  of  taxes.  Those 
exceptions     are     confined     almost. 


if  not  entirely,  to  cases  where 
the  tax  itself  is  not  authorized  by 
law,  or  if  the  tax  itself  is  author- 
ized, it  is  assessed  upon  property 
which  is  not  subject  to  the  tax. 
fciuch  was  the  case  of  the  Illinois 
Central  Railroad  Company  v.  The 
County  of  McLean,  17  111.  R.,  291. 
There  we  enjoined  a  tax  levied 
upon  property  not  subject  to  that 
tax.  But  it  is  unnecessary  to  re- 
fer to  all  the  cases  to  be  met  with 
in  our  own  and  other  reports  on 
this  subject.  Where  an  injunction 
has  been  finally  sustained  it  will 
generally,  if  not  always,  be  found 
to  be  of  this  class.  It  is  possible 
that  cases  may  sometimes  be  found 
where  this  distinction  has  been  dis- 
regarded from  inadvertence,  or 
from  the  peculiar  circumstances 
connected  with  them.  We  can  find 
no  other  basis  for  a  reasonable  and 
practical  distinction.  If  we  permit 
the  injunction  to  be  issued  where 
the  tax  is  authorized  by  law  and 
the  thing  taxed  is  liable  to  that 
tax,  there  is  no  stopping  point 
short  of  enjoining  all  taxes,  when- 
ever any  irregularity  has  inter- 
vened. This  power  the  court  of 
chancery  has  never  assumed,  nor 
could  it  without  the  most  disas- 
trous consequences  to  the  state. 
There  may  be  cases,  the  particular 
circumstances  or  peculiar  hard- 
ships of  which  will  justify  an  ex- 
ception to  this  general  rule.  This 
is  not  one.  We  have  examined  the 
alleged  irregularities  in  the  levy  of 
this  tax,  and  are  by  no  means  pre- 
pared to  say  that  they  can  be  sus- 


CHAP.  VIII.] 


AGAINST  TAXES. 


441 


ings  were  irregular,  or  even  void  in  some  particulars.^^  In  all 
such  cases,  the  burden  of  complaint  being  the  illegality,  error 
or  irregularity  in  the  action  of  the  officers  charged  with  the 
duty  of  levying  and  collecting  the  revenue,  it  is  presumed  that 
an  adequate  remedy  may  be  found  in  the  courts  of  law,  and 
equity  therefore  refuses  to  interfere  by  the  extraordinary 
remedy  of  in j unction.^ '^     Nor  will  the  collection  of  a  tax  be 


tained  anywhere.  Indeed,  we  think 
a  satisfactory  answer  to  all  these 
objections  possible,  but  we  choose 
to  place  our  decision  upon  the 
broad  ground  of  jurisdiction,  that 
all  may  distinctly  know  when  the 
court  of  chancery  will,  and  when 
it  will  not  interfere  to  enjoin  the 
collection  of  the  public  revenue,  or 
at  least  that  they  may  know  what 
the  general  rule  on  this  subject  is." 
!•'>  Warden  v.  Supervisors,  14 
Wis.,  618;  Kellogg  iK  Oshkosh,  lb., 
623.  Warden  v.  Supervisors  was  a 
proceeding  in  equity  to  enjoin  the 
execution  of  a  deed  of  certain 
lands  sold  for  taxes,  upon  the 
ground  of  irregularities  in  the  as- 
sessment. The  chief  point  relied 
upon  was  the  fact  that  the  taxes 
for  a  certain  year,  not  being  paid, 
were  carried  over  and  included  in 
the  tax  roll  and  treasurer's  war- 
rant for  the  succeeding  year.  Dix- 
on, C.  J.,  in  giving  the  opinion  of 
the  court,  says:  "The  collection  of 
a  tax,  under  the  statute,  is  a  legal 
proceeding  to  enforce  the  payment 
of  a  debt  due  the  public,  and,  like 
proceedings  at  law  upon  a  private 
claim,  equity  will  only  interfere  to 
prevent  injustice  by  the  unfair  use 
of  the  process  of  the  law.  The 
primary  and  controlling  principle 
in  such  cases  is,  that  the  proceed- 
ings to  be  stayed   are   inequitable 


and  unjust,  and  that  it  will  be 
against  conscience  to  allow  them 
to  go  on.  Stokes  v.  Knarr,  11  Wis. 
389;  Ableman  v.  Roth,  12  Wis.,  91 
It  will  not  be  enough  to  show  that 
they  are  irregular  or  even  void 
Courts  of  equity  do  not  sit  to  re 
verse  or  correct  errors  and  mis 
takes  of  law.  To  be  entitled  to 
their  assistance  the  party  applying 
must  show  that  he  is  in  danger 
of  unjustly  losing  a  substantial 
right,  and  that  he  is  in  no  fault. 
Neither  of  these  things  appears  in 
this  case."  And  accordingly  the 
action  was  dismissed.  But  see, 
contra,  Myrick  v.  La  Crosse,  17 
Wis.,  442,  where  it  is  held  that  if 
the  defect  in  the  proceedings  is  not 
simply  one  of  form,  or  a  technical 
error,  but  is  a  material  defect,  de- 
priving complainant  of  a  substan- 
tial and  valuable  right  secured  to 
him  by  law,  the  assessment  is  in- 
valid and  the  injunction  will  be 
allowed  to  restrain  proceedings 
thereunder.  And  in  Siegel  v. 
Supervisors,  26  Wis.,  70,  it  is  held 
that  the  issuing  of  a  tax  deed  for 
lands  sold  under  a  tax  adjudged  to 
be  void  may  be  enjoined  by  one 
whose  title,  though  acquired  after 
the  assessment,  will  yet  be  clouded 
by  such  deed. 

16  Dows    V.    Chicago,     11     Wal., 
108;    Clinton,   etc.,  Appeal,   56   Pa. 


448  INJUNCTIONS.  [chap.  VIII. 

enjoined  because  of  errors  or  irregularities  in  the  proceed- 
ings, or  because  of  an  improper  valuation  or  assessment,  which 
might  have  been  corrected  by  timely  application  to  the  proper 
officers,^  ^  nor  where  adequate  relief  may  be  had  by  appeal 
from  the  action  of  such  officers.^ ^ 

§  487.  Equity  powerless  to  correct  tax.  In  addition  to  the 
reasons  already  suggested  for  the  doctrine  of  non-interference 
in  equity  with  the  collection  of  the  revenue,  may  be  mentioned 
the  want  of  power  in  the  court  to  afford  complete  relief  by 
correcting  mistakes  and  errors,  or  by  setting  the  taxing 
machinery  again  in  motion  for  the  purpose  of  again  levying  and 
enforcing  a  tax  which  has  been  found  to  be  illegal  or  defective. 
A  court  of  equity  is  powerless  to  apportion  a  tax,  or  to  make 
a  new  assessment,  or  to  direct  the  making  of  another  assess- 
ment by  the  proper  officers,  the  levying  and  collection  of  a 
tax  being  in  no  sense  a  judicial  function,  but  one  which  per- 
tains rather  to  the  political  functions  of  the  government,  to  be 
exercised  by  the  proper  officers  to  whom  the  power  is  intrusted. 
And  the  fact  that  courts  of  equity  are  thus  hampered  in  any 
attempt  at  the  exercise  of  jurisdiction  over  matters  of  tax- 
ation by  their  inability  to  do  complete  justice,  either  by  making 
or  causing  to  be  made  a  new  assessment  upon  principles  which 
they  might  deem  just,  affords  additional  reason  for  withhold- 

St.,  315;  Warden  v.  Supervisors,  14  erbury  Savings  Bank  v.  Lawler,  46 

Wis.,  618.    And  see  Cooley  on  Taxa-  Conn.,  243. 

tion,  536,  540,  541.  In  Connecticut  i"  Covington  v.  Town  of  Roclting- 
the  disposition  of  the  courts  is  ham,  93  N.  C,  134;  Johnson  r.  Rob- 
strongly  averse  to  interference  by  erts,  102  111.,  655;  Felsenthal  c 
injunction  with  the  collection  of  Johnson,  104  III.,  21;  Humphreys  y. 
taxes,  and  the  courts  will  not  in-  Nelson,  115  111.,  45,  4  N.  E.,  637; 
terpose  in  the  absence  of  circum-  Camp  v.  Simpson,  118  111.,  224,  8  N. 
stances  of  imperative  necessity.  E.,  308.  See  also  New  York  Stock 
Arnold  r.  Middletown,  39  Conn.,  Exchange  r.  Gleason,  121  111.,  502, 
401;    Dodd  v.  City  of  Hartford,  25  13  N.  E.,  204. 

Conn.,     232;      Rowland     v.     First  i«  Van  Nort's  Appeal,  121  Pa.  St., 

School  District,  42  Conn.,  30;  Wat-  118,  15  Atl..  473;  Hendricks  v.  Gil- 
christ, 76  Ind.,  369. 


CHAP.  VIII.]  AGAINST  TAXES.  449 

ing  relief   by  injunction   against  the   exercise   of   the   taxing 
power.i^ 

§  488.  Irregularities  in  assessment  no  ground  for  injunction. 
Having  thus  considered  the  general  doctrine  denying  relief  by 
injunction  against  the  collection  of  taxes  upon  grounds  of 
mere  error  or  irregularity  in  the  proceedings,  it  is  proposed 
to  present  somewhat  in  detail  various  illustrations  of  the  appli- 
cation of  the  doctrine,  before  passing  to  the  discussion  of 
those  cases  in  which  a  departure  from  the  rule  of  non-interfer- 
ence has  been  allowed.  The  most  frequent  class  of  cases  in 
which  the  rule  as  stated  has  been  applied  are  cases  where  the  de- 
fect or  irregularity  complained  of  is  in  the  action  of  the  officers 
charged  with  the  preliminary  duty  of  making  the  assessment. 
And  upon  this  point  it  is  to  be  borne  in  mind  that  the  fact  of 
an  assessment  being  illegal  and  improperly  made  does  not 
necessarily  render  all  taxes  founded  thereon  void,  or  authorize 
an  injunction  against  their  collection.^o  The  courts  have  there- 
fore generally  refused  to  interfere  because  of  mere  irregulari- 
ities  or  omissions  in  the  acts  of  the  officers  charged  with  the 
duty  of  making  the  assessment.-^  And  when  it  is  not  charged 
that  the  tax  was  assessed  upon  property  not  subject  to  taxa- 
tion, or  that  it  was  not  authorized  by  law,  its  enforcement  will 
not  be  enjoined  because  of  irregularities  in  the  action  of  the 
officers  making  the  assessment.--     So  the  omission  by  the  as- 

19  State  Railroad  Tax  Cases,  2  red  by  statute  upon  the  courts  of 
Otto,  575.  See  also  Traders  Ins.  common  pleas  to  enjoin  the  collec- 
Co.  i\  Parwell,  102  111.,  413.  tion    ol!     taxes     illegally    assessed. 

20  Adams  v.  Beman,  10  Kan.,  37.  And  see  as  to  the  principles  which 

21  Swinney  v.  Beard,  71  111.,  27;  govern  the  courts  in  the  exercise 
Supervisors  v.  Jenks,  65  111.,  275;  of  the  jurisdiction  thus  conferred, 
Albany  &  B.  M.  Co.  r.  Auditor-  Glenn  v.  Waddel,  23  Ohio  St.,  ^05; 
Lreneral,  37  Mich.,  391;  Rio  Grande  Burgett  v.  Norriss,  25  Ohio  St., 
R.  Co.  V.  Scanlan,  44  Tex.,  649;  308;  Wight  v.  Thomas,  26  Ohio  St., 
George  v.  Dean,  47  Tex.,  73;  Gay  346;  Hays  v.  Jones,  27  Ohio  St., 
V.  Hebert,   25  La.  An.,  196;   West-  218. 

ern  R.  Co.  v.  Nolan,  48  N.  Y.,  513;  22  Swinney  v.  Beard,  71  111.,  27; 

Ricketts   r.   Spraker,   77   Ind.,  371.      Lyle  r.  Jacques,  101  111.,  644. 
But  in  Ohio  jurisdiction  is  confer- 
29 


450  .    INJUNCTIONS.  [chap.  vih. 

sessors  to  call  upon  taxpayers  for  a  list  of  their  taxable  prop- 
erty as  required  by  law  is  treated  as  a  mere  irregularity,  and 
not  as  sufficient  ground  for  enjoining  the  tax.^^  Nor  does  the 
fact  that  real  property  was  not  assessed  in  the  name  of  the 
owner  warrant  the  relief.^*  So  irregularities  in  the  making 
of  the  assessment  roll  under  which  a  tax  is  levied  and  collected, 
although  they  may  show  a  want  of  proper  diligence  upon  the 
part  of  the  officers  whose  duty  it  is  to  make  the  assessment, 
do  not  warrant  an  injunction  against  the  tax  when  it  is  not 
shown  that  complainants  are  not  in  equity  and  conscience 
chargeable  for  the  full  amount  of  the  tax  claimed  of  them.^^ 
So  the  failure  of  the  assessor  to  verify  the  assessment  roll 
under  oath  as  required  by  law  is  a  mere  irregularity  which  does 
not  render  the  tax  void  and  therefore  constitutes  no  ground 
for  equitable  relief  against  its  enforcement.-^  Nor  will  the 
collection  of  a  tax  be  enjoined  upon  the  ground  that  the 
action  of  the  board  of  review  in  increasing  an  assessment  as 
returned  by  the  assessor  was  based  upon  evidence  which  would 
have  been  inadmissible  in  a  court  of  law  under  the  rules  of 
evidence.2'^  Nor  will  the  relief  be  granted  because  of  the  fail- 
ure of  the  assessment  books  to  show  the  full  valuation  of 
plaintiff's  property  upon  which  the  assessed  valuation  is  based, 
or  upon  the  ground  that  the  board  of  review,  having  examined 
witnesses  as  to  plaintiff's  financial  standing,  failed  to  place 
them  under  oath,  or  to  give  plaintiff'  an  opportunity  to  cross- 
examine  them.28  And  a  sale  of  lands  for  delinquent  taxes 
will  not  be  restrained  because  of  irregularities  in  the  assessment 
roll,  when  no  inequalities  or  injustice  is  shown  in  the  tax.2» 

ii'<  Supervisors   v.   Jenks,    65    111.,  502;    Wisconsin   Central   R.    Co.  v. 

275.  Lincoln  Co.,  67  Wis.,  478,  30  N.  W., 

24  Id.  619. 

25  George  v.  Dean,  47  Tex.,  73.  27  Hixon    v.    Oneida    County,    82 
20  Avant  V.  Flynn,  2  S.  Dak.,  153,  Wis.,  515,  52  N.  W.,  445. 

49    N.   W.,   15;    Fifield    v.     Marin-  2s  Earl    &    Wilson    v.    Raymond, 
ette  Co.,   62   Wis.,    532,   22    N.    W.,  188  111.,  15,  59  N.  E.,  19. 
705,   in  f'ffect  overruling  Marsh   r.  2"  Albany  &  B.  M.  Co.  r.  Auditor- 
Supervisors  of  Clark  Co.,  42  Wis.,  General,  37  Mich.,  391. 


CHAP.  VIII.]  AGAINST  TAXES.  451 

So  mere  irregularities  in  the  valuation  of  property  for  tax- 
ation, or  an  excessive  valuation,  in  the  absence  of  fraud,  will 
not  warrant  relief  by  injunction.-'^'^  And  complainant's  laches 
in  seeking  relief  may  constitute  sufficient  ground  for  refusing 
an  injunction,^^  especially  where  the  greater  part  of  the  tax  has 
been  collected  before  the  filing  of  the  bill.^^  -^qj.  -^y^i  equity 
enjoin  such  a  sale  because  of  an  irregularity  in  the  publica- 
tion of  notice  to  taxpayers  of  the  assessment,  when  complain- 
ant had  actual  notice,  and  when  he  shows  no  injury  to  himself 
by  the  assessment  and  levy  of  the  tax.^^  So  where  a  remedy 
at  law  exists  by  certiorari  for  the  correction  of  errors  com- 
mitted by  assessors  in  the  discharge  of  their  duties,  the  assess- 
ment will  net  be  enjoined.^^  And  when  complainant  has  neg- 
lected to  avail  himself  of  the  means  provided  by  law  for  the 
correction  of  errors  in  the  assessment,  he  will  not  be  allowed 
relief  by  injunction  because  of  such  errors.^^  "Where,  how- 
•ever,  the  grievance  complained  of  consists  in  the  mode  and 
form  of  collecting  the  tax,  rather  than  in  the  rate  or  assess- 
ment, and  where  no  remedy  has  been  provided  by  law  for 
such  improper  manner  of  collection,  an  injunction  has  been  al- 
lowed because  of  the  want  of  a  remedy  at  law.^^ 

30  Wagoner  v.  Loomis,  37  Ohio  demurrer  if  it  fails  to  allege  that 
St.,  571;  Woodman  v.  Ely,  2  Fed.,  the  treasurer  is  attempting  to  col- 
839.  lect    the    tax.      Pugh    v.    Irish,    43 

31  Stamper   v.    Roberts,    90    Mo.,  Ind..  415. 

683,  3  S.  W.,  214.  se  Miller  v.  Gorman,   38  Pa.   St., 

32  Kennedy  v.  Montgomery  Co.,  309;  Bogart  i?.  City  of  Elizabeth,  10 
98  Tenn.,  165,  38  S.  W.,  1075.  C.    E.    Green,    427.      And    in    Ken- 

33  Gay  ;'.  Hebert,  25  La.  An.,  196.     tucky  the  right  to  enjoin  an  illegal 
31  Western  R.  Co.  v.  Nolan,  48  N,     tax   or   assessment   is  well    estab- 

Y.,   513.  lished,  the  relief  being  granted  be- 

35  Rio  Grande  R.  Co.  v.  Scanlan,  cause    of    the    inadequacy    of    the 

44  Tex.,  649;  Wagoner  v.  Loomis,  remedy  at  law.     Gates  v.  Barrett, 

37  Ohio  St.,  571.    And  in  Indiana  it  79  Ky.,  295;   Baldwin  v.  Shine,  84 

is  held  that  a  bill  seeking  to  enjoin  Ky.,  502,   2   S.  W.,  164;   Negley  v. 

a  county  treasurer  from  collecting  Henderson  B.  Co.,  107  Ky.,  414,  54 

a  tax  because  of  errors  and  illegal-  S.   W.,   171.     And  see   Baldwin   v. 

ities  in  the  assessment  is  bad  on  Hewitt,  88  Ky.,  673,  11  S.  W.,  803. 


452  INJUXCTIONS.  [chap.  VIII. 

§  489.     Illustrations   of   irregularities   on   which   injunction 
refused.     In  further  illustration  of  the  doctrine  under  discus- 
sion, it  is  held  that  where  the  ground  of  complaint  is  only 
with  reference  to  the  manner  of  transferring  and  placing  a 
tax  upon  the  books,  as  in  the  manner  of  returning  the  tax  by 
a  township  clerk  to  the  clerk  of  a  county  board  of  supervis- 
ors, equity  will  not  relieve  by  injunction  against  the  payment 
of  taxes  legally  levied  and  justly  due.^^     And  the  fact  that 
taxing  officers  have  been  delinquent  in  the  discharge  of  their 
duty  by  not  seizing  the  personal  property  of  the  taxpayer  in 
satisfaction  of  the  tax,  when  first  assessed,  affords  no  ground 
for  enjoining  its  collection  when  subsequently  assessed."**     So 
a  mere  irregularity  in  the  tax,  when  the  whole  amount  is  not 
illegal,  will  not  warrant  an  injunction.^^    And  where  the  error 
complained  of  consists  in  the  misnomer  of  a  corporation  upon 
the  assessment  books  the  relief  will  be  refused.'^^    Nor  docs  the 
fact  that  property  subject  to  taxation  has  not  been  listed  war- 
rant interference  by  injunction.     Nor  will  a  sale  of  property 
for  unpaid  taxes  be  enjoined  merely  on  account  of  irregulari- 
ties in  tht;  giving  of  notice  of  the  time  and  place  of  sale.^^    So 
a   court   of  equity  will  not   enjoin  the   transfer   of  tax   sale 
certificates,  or  the  issuing  of  tax  deeds  thereon,  because  of 
irregularities  in  the  tax  proceedings,  when  the  property  sold  is 
subject  to  taxation,  the  tax  legal,  and  the  valuation  not  exces- 
sive."*-     Indeed,   the   doctrine   of  non-interference  because   of 
irregularities   applies   not    only   to    general   and   special   taxes 
alike,  but  also  to  the  issuing  of  a  tax  deed  upon  a  sale  of 
land  for  unpaid  taxes,  since  the  deed  is  but  one  step  in  the 

37  Iowa     Railroad     Land    Co.    v.  Md.,  1;    Hibernian  Benevolent  So- 

County  of  Sac,  39  Iowa,  124;  Same  ciety  v.  Kelly,  28  Ore.,  173,  42  Pac, 

V.  Carroll  County,  39   Iowa,  151.  3,  30  L.  R.  A.,  167,  52  Am.  St.  Rep., 

38Whittaker    v.    City    of    Janes-  769;   Booth  &  Co.  v.  Raymond,  191 

vine,  33  Wis.,  76.  111.,   351,   61  N.   E.,  129. 

30  Brown  v.  Herron,  59  Ind.,  61;  <i  Finnegan    v.    City   of    Fernan- 

Clty  of  Delphi  v.   Bowen,  61   Ind.,  dina,  15   Fla.,   379. 
29.  ■'-  Challiss    r.    Commissioners    of 

40  O'Neal   v.  Virginia  B.   Co.,   18 


CHAP.  VIII.]  AGAINST  TAXES.  453 

proceedings  for  the  enforcement  of  the  tax."*^  So  equity  will 
not  enjoin  the  collection  of  a  tax  because  of  an  excessive  levy, 
or  where  no  injury  is  shown  which  can  not  be  adequately 
compensated  in  damages,  but  will  leave  the  aggrieved  tax- 
payer in  such  case  to  his  remedy  at  law."**  And  it  has  been 
held  that  to  give  a  court  of  equity  jurisdiction  to  enjoin  a 
tax  it  must  be  shown  that  the  collector  is  about  to  sell  prop- 
erty unlaw^fully  in  satisfaction  of  the  tax,  and  that  such  sale 
will  result  in  irreparable  injury  to  the  complaining  taxpayer.*^ 
§  490.  Errors  and  mistakes  of  officers ;  distinction  between 
void  and  voidable  tax.  In  reviewing  the  action  of  taxing  oiS- 
eers  upon  bills  to  enjoin  the  enforcement  of  a  tax,  courts  of 
equity  are  inclined  to  indulge  the  usual  presumption  in  favor 
of  the  regularity  and  validity  of  the  conduct  of  public  officers, 
until  the  contrary  is  shown.  They  will  not,  therefore,  enjoin 
upon  mere  general  averments  that  the  assessment  was  too 
high,  and  that  testimony  was  produced  before  the  taxing  board 
to  show  that  fact,  but  all  the  facts  should  be  affirmatively 
shown  in  the  bill.^*^  So  where  fraud  upon  the  part  of  the 
officers  is  relied  upon  as  a  ground  of  equitable  relief  the 
facts  constituting  the  fraud  should  be  set  forth,  and  not  mere 
general  allegations  of  fraudulent  conduct.'*'''  And  in  applica- 
tions for  equitable  relief  against  taxation  a  distinction  is  to 
be  observed  between  cases  where  there  is  an  entire  absence 
of  authority  upon  the  part  of  the  taxing  officer,  and  cases  of  a 
mistaken  or  wrongful  execution  of  an  authorit}^  which  has 
been  duly  conferred.  And  if  the  officer  is  acting  under  a 
valid  law,  and  confines  himself  within  its  limits  as  to  the  rate 
and  objects  of  taxation,  he  will  not  be  enjoined,  although 
errors  and  abuses  may  occur  in  the  exercise  of  the  power.*^    A 

Atchison  Co.,  15  Kan.,  49;  Stebbins  <«  Tainter  v.  Lucas,  29  Wis.,  375. 

V.  Challiss,  15  Kan.,  55.  4?  id. 

43  City  of  Lawrence  v.  Killam,  11  4s  Decker   v.    McGowan,    59    Ga., 

Kan.,  499.  805.     See     also     Georgia     Mutual 

■i*  Coulson  V.  Harris,  43  Mo.,  728.  Loan  Association  v.  McGowan,  59 

45  Id.  Ga.,  811. 


454  INJUNCTIONS.  [chap.  VIII. 

distinction  had  also  been  drawn  between  a  defect  in  the  law 
itself  under  which  the  tax  is  being  collected,  and  mere  irreg- 
ularities in  its  execution ;  and  while,  in  the  former  case,  equita- 
ble relief  may  sometimes  be  allowed,  in  the  latter  it  will  be 
withheld. ^^  So  equity  will  not  enjoin  a  tax  which  is  merely 
voidable  and  not  void,  and  will  not  interfere  because  other 
property  has  been  assessed  at  a  lower  rate  than  that  of  com- 
plainants.^*^ And  where  certain  taxes  are  authorized  by  an 
act  of  legislature  to  be  levied  and  collected  for  a  work  of  pub- 
lic improvement,  and  officers  are  appointed  to  act  under  oath 
and  to  be  the  sole  judges  of  what  lands  will  be  benefited  by 
the  improvement,  and  to  assess  only  such  lands,  a  court  of 
equity  will  not  interfere  by  injunction  with  the  exercise  of 
the  judgment  of  such  officers  upon  grounds  of  mistake  or  error 
in  judgment,  in  the  absence  of  fraud,  but  will  leave  the  party 
aggrieved  to  pursue  his  legal  remedy.^^  And  it  may  be  said 
generally  that  courts  of  equity  will  not  interfere  with  the 
collection  of  taxes  because  of  mistakes  in  judgment  on  the 
part  of  the  officers  assessing  the  tax,  when  they  have  acted 
fairly  and  impartially  and  ar^  not  chargeable  with  bad  faith. ^2 
§490«.  When  overvaluation  no  ground  for  injunction.  The 
rule  is  well  established  that,  in  the  absence  of  fraudulent  con- 
duct upon  the  part  of  an  assessing  officer  or  board,  the  courts 
will  not  interfere  by  injunction  with  the  collection  of  taxes, 
where  the  only  ground  for  complaint  is  that  of  an  excessive 
assessment  or  overvaluation  of  the  taxpayer's  property. 
Where  the  law  imposes  the  duty  of  valuing  property  for  taxa- 
tion upon  a  particular  officer  or  tribunal,  their  action  is  judi- 
cial in  its  nature,  and  so  long  as  they  exercise  their  honest 
judgment  in  the  matter  and  are  guilty  of  no  fraud,  caprice  or 
other  improper  motive,  their  action  is  not  reviewable  in  equity 

49  Center  Co.  v.  Black,  32  Ind.,  •>'^  Clayton  v.  Lafargue,  23  Ark., 
468.  137. 

50  Gulf  R.  Co.  r.  Morris,  7  Kan.,  "'-  Le  Roy  r.  New  York,  4  Johns. 
210,  affirmed  in  Gulf  R.  Co.  v.  Ch.,  352.  This  was  a  bill  for  relief 
Blake,  U  Kan.,  489.  against  an  assessment  made  to  de- 


CHAP.  VIII,] 


AGAINST  TAXES. 


455 


even  though  the  chancellor  be  of  the  opinion  that  their  valua- 
tion is  too  high,  and  relief  by  injunction  will  accordingly  be 
denied.^^ 


fray  the  expense  of  constructing 
a  common  sewer  in  the  city  of 
New  York,  and  to  enjoin  the  com- 
missioners from  collecting  the  as- 
sessment on  the  ground  that  it  did 
not  include  all  property  holders 
benefited  by  the  improvement. 
Kent,  Chancellor,  says:  "I  can 
not  find  that  the  court  interferes 
in  cases  of  this  kind,  where  the 
act  complained  of  was  done  fairly 
and  impartially,  according  to  the 
best  judgment  and  discretion  of 
the  assessors;  and  a  precedent, 
once  set,  would  become  very  em- 
barrassing and  extensive  in  its 
consequences.  If  the  power  under 
this  statute  had  been  exercised  in 
bad  faith  and  against  conscience,  I 
might  have  attempted  to  control 
it;  but  a  mere  mistake  of  judg- 
ment in  a  case  depending  so  much 
upon  sound  discretion,  can  not 
properly  be  brought  into  review, 
under  the  ordinary  powers  of  this 
court.  There  must  have  been  a 
thousand  occasions  and  opportun- 
ities for  the  exercise  of  such  an 
appellate  jurisdiction  in  the  his- 
tory of  the  jurisprudence  and  prac- 
tice of  the  English  Court  of  Chan- 
cery, if  such  a  jurisdiction  ex- 
isted, and  yet  we  find  no  prece- 
dents to  direct  us.  A  mistake  of 
judgment  in  the  assessors,  upon 
the  matter  of  fact,  what  portion  or 
district  of  the  city  was  intended  to 
be  and  actually  was  benefited  by 
the  common  sewer,  can  hardly  be 
brought  within  the  reach  of  that 


head  of  equity  jurisdiction  which 
relates  to  breaches  of  trust.  Here 
is  not,  strictly  speaking,  a  viola- 
tion of  duty.  No  bad  faith  or  par- 
tiality in  the  assessors  is  pretend- 
ed. The  aid  of  this  court  might 
as  well  be  asked  to  review  every 
assessment  of  a  land  tax  or  a  poor 
rate.  I  apprehend  it  would  require 
a  special  provision  by  statute  to 
authorize  chancery  to  interfere 
with  these  assessments."  And  see 
Attorney-General  v.  Foundling 
Hospital,  4  Bro.,  165,  and  Haight  v. 
Day,  1  Johns.  Ch.,  18. 

53  Porter  v.  Rockford,  R.  I.  &  St. 
L.  R.  Co.,  76  111.,  561;  Republic 
Life  Ins.  Co.  v.  Pollack,  75  111., 
292;  La  Salle  &  P.  H.  &  D.  R.  Co. 
V.  Donoghue,  127  111.,  27,  18  N.  E., 
827,  11  Am.  St.  Rep.,  90;  Kocher- 
sperger  v.  Larned,  172  111.,  86,  49 
N.  E.,  988;  Kinley  Mfg.  Co.  v. 
Kochersperger,  174  111.,  379,  51  N. 
E.,  648;  Burton  Stock  Car  Co.  v. 
Traeger,  187  111.,  9,  58  N.  E.,  418; 
Ayers  v.  Widmayer,  188  111.,  121, 
58  N.  E.,  956;  Wells,  Fargo  &  Co.  v. 
Crawford  County,  63  Ark.,  576,  40 
S.  W.,  710,  37  L.  R.  A.,  371;  Col- 
lins V.  City  of  Keokuk,  118  Iowa, 
30,  91  N.  W.,  791;  St.  Louis  L.  I. 
M.  &  S.  R.  Co.V'.  Worthen,  52  Ark., 
529,  13  S.  W.,  254.  See  also  In- 
ternational &  G.  N.  R.  Co.  V.  Smith 
County,  54  Tex.,  1.  But  in  Okla- 
homa it  is  held  that  where  a  board 
of  equalization  raises  the  assess- 
ment of  a  taxpayer's  property 
over  and  above  its  fair  cash  value. 


456  INJUNCTIONS.  [chap.  VIII. 

§491.  Remedy  at  law;  irreparable  injury;  insolvency  of 
assessor.  It  is  also  to  be  observed  that  in  cases  where  the 
grounds  for  relief  against  the  tax  consist  of  alleged  irregular- 
ities and  illegalities,  which  appear  fully  of  record,  and  a 
complete  remedy  exists  at  law,  either  by  certiorari  to  an 
inferior  court  having  jurisdiction  over  the  levy  of  the  tax,  or 
by  prohibition  to  prevent  that  court  from  making  an  illegal 
levy,  equity  will  not  interpose  by  injunction,  but  will  leave  the 
parties  aggrieved  to  pursue  the  legal  remedy.  And  if,  in  such 
ease,  the  bill  fails  to  negative  the  remedy  at  law,  and  presents 
no  reasons  for  not  pursuing  that  remedy,  it  is  demurrable.^* 
And  upon  like  principles  equity  will  not  entertain  a  bill  for 
an  injunction  to  restrain  the  enforcement  of  a  tax  which  is 
alleged  to  be  illegal,  when  a  plain  and  adequate  remedy  exists 
at  law  by  application  for  an  abatement  of  the  tax.^^  Nor  will 
equity  restrain  the  enforcement  of  a  tax  Avhere  the  taxpayer 
has  a  statutory  right  of  appeal  to  the  court  for  the  purpose  of 
having  the  assessment  revised,  of  which  he  has  failed  to  avail 
himself.^6  Nor  will  relief  be  granted  where  there  is  a  remedy 
at  law  by  payment  of  the  tax  under  protest  and  suing  to  re- 
cover it.^'^  Nor  will  equity  restrain  the  prosecution  of  a  pend- 
ing action  at  law  instituted  for  the  purpose  of  enforcing  the 
collection  of  taxes,  upon  grounds  which  may  be  raised  as  a 
defense  to  that  proceeding.^^  Nor  will  the  collection  of  a  tax 
be  enjoined  in  any  case  when  it  is  not  shown  that  the  injury 

the  portion  of  the  tax  based  upon  s^  Pittsburg,  etc.  Ry.  r.  Board  of 

such  increased  assessment  will  be  Public  Works,  172  U.  S.,  32,  19  Sup. 

enjoined.     Cranmer  v.  Williamson,  Ct.  Rep.,  90. 

8  Okla.,  683,  59  Pac,  249.  "''  Arkansas    Building     Assu.     r. 

54  Floyd  V.    Gilbreath,    27    Ark.,  Madden.  175  U.  S.,  269,  20  Sup.  Ct. 

675;  Murphy  v.  Harbison,  29  Ark.,  Rep..  119;  Robinson  r.  City  of  Wil- 

340.     Contra,  Alexander  v.  Render-  mington,  13  C.  C.  A.,  177,  65  Fed., 

son,  105  Tenn.,  431,  58  S.  W.,  648.  856. 

■'■'•'■•  Rockingham   Savings  Bank  r.  -^^  Scottish  Union  &  National  In- 

Portsmouth.   52  N.   H.,  17;    Brown  surance  Co.  /,'.  Bowland,  196  U.  S., 

V.    Concord,    56    N.    H.,    375.      See,  611,  25  Sup.  Ct.  Rep.,  345. 
contra,  Barr  v.  Deniston,  19  N.  H., 
170. 


CHAP.  VIII.]  AGAINST  TAXES.  457 

resulting  from  its  enforcement  would  be  irreparable,  and  this 
fact  must  distinctly  appear  by  issuable  averments.^^  And 
where  the  tax  collector  and  his  sureties  are  able  to  respond 
in  damages,  there  being  no  averments  of  irreparable  injury, 
the  complaining  taxpayer  will  be  denied  relief  by  injunc- 
tion against  the  collection  of  the  tax,  and  will  be  left  to  pur- 
sue his  legal  remedy  for  the  trespass.^'"  Nor  will  mere  general 
averments  in  the  bill  of  the  inadequacy  of  the  remedy  at 
law,  or  that  irreparable  injury  will  be  sustained  by  the  sale  of 
complainant's  property  for  taxes,  suffice  to  warrant  an  injunc- 
tion, but  the  facts  must  be  stated  upon  which  the  court  can 
determine  whether  such  averments  are  true.^i  And  it  will  not 
suffice  to  allege  merely  in  general  terms  that  the  taxes  in  ques- 
tion were  levied  for  illegal  or  unauthorizd  purposes,  but  the 
facts  must  be  set  forth  so  that  the  court  may  determine 
whether  such  purposes  are  illegal  or  unauthorized.''-  Nor 
will  the  alleged  insolvency  of  the  assessor  of  itself  justify  a 
court  of  equity  in  extending  its  preventive  aid  by  injunction 
against  the  enforcement  of  the  tax.^^ 

§  492.    Further  illustrations   of  the  general   doctrine.     In 

cases  of  mere  non-compliance  with  some  particular  direction 
of  the  statute,  aside  from  which  the  tax  is  sufficiently  regular, 
or  where  the  irregularities  relate  only  to  the  time  in  which  the 
different  steps  w^ere  taken,  and  do  not  aft'ect  the  principle  of 
taxation  or  the  groundwork  of  the  proceedings,  relief  in  equity 
will  not  be  allowed,  such  irregularities  being  regarded  as 
merely  technical  defects,  which,  while  they  can  never  be 
wholly  avoided,  do  not  go  to  the  merits  of  the  proceedings.^* 

59  Ritter  v.  Patch,  12  Cal.,  298;  es  Wells  v.  Dayton,  11  Nev.,  161. 
Coulson  V.  Harris,  43  Miss.,  728.  64  Mills  v.  Gleason,  11  Wis.,  470; 

60  Ritter  v.  Patch,  12  Cal.,  298.  Mills  v.  Johnson,  17  Wis.,  598; 
See  also  Anthony  v.  Sturgis,  86  Wisconsin  Central  R.  Co.  v.  Ash- 
Ind.,  479.  land  County,  81  Wis.,  1,  50  N.  W., 

61  Wells  V.  Dayton,  11  Nev.,  167.  937.     And  see  Canfield  v.  Bayfield 

62  Mace  V.  Commissioners,  99  N.  County,  74  Wis.,  60,  41  N.  W.,  437, 
C,  65,  5  S.  E.,  740.  42  N.  W.,  100. 


458  INJUNCTIONS.  [chap.  VIII. 

Nor  will  alleged  irregularities  in  the  sale  of  lands  for  taxes 
afford  ground  for  the  interference  of  equity  to  restrain  the  pur- 
chaser from  afterward  selling  the  same  lands,  the  two  sales 
being  entirely  independent  of  and  distinct  from  each  other.^^ 
So  a  tax  will  not  be  enjoined  because  of  its  alleged  illegality, 
when  it  is  not  shown  that  its  enforcement  would  lead  to  a 
multiplicity  of  suits,  or  produce  irreparable  injury,  or  throw 
a  cloud  upon  the  title  to  real  estate^"  And  it  is  not  sufficient 
ground  for  relief  to  allege  that  a  tax  sale,  if  allowed  to  pro- 
ceed, would  involve  the  owner  of  the  property  in  litigation 
with  purchasers,  since  probabilities  of  that  nature  are  too 
remote  to  warrant  a  court  of  equity  in  interposing  by  injunc- 
tion to  restrain  the  collection  of  the  public  revenue.*'^  Nor  will 
a  court  interfere  by  injunction  in  advance  of  any  steps  by  the 
proper  officers  for  the  levying  or  collection  of  the  tax  com- 
plained of,  and  merely  upon  complainant's  fears  that  it  may  be 
levied  in  the  future.**^ 

§  493.  Boards  of  review  or  equalization,  their  action  not 
revised  in  equity ;  mandamus ;  when  appeal  to  board  unneces- 
sary. In  many  of  the  states  of  this  country  different  tribunals 
or  boards  of  equalization  are  provided  by  law,  whose  functions 
consist  in  hearing  complaints  of  persons  aggrieved,  adjusting 
inequalities  among  different  taxpayers  and  equalizing  the 
burdens  of  taxation  among  the  different  persons  subject 
thereto.  And  questions  of  much  practical  importance  fre- 
quently occur  in  determining  how  far  the  action  of  such  boards 
or  officers  may  form  the  foundation  for  relief  by  injunction 
against  the  enforcement  of  taxation.  The  fundamental  prin- 
ciple applicable  to  such  cases  is,  that  a  court  of  equity  is  not 
a  court  of  errors  to  review  the  acts  of  public  officers  in  the 

«■'- St.    Louis  V.   Goode,     21     Mo.,  65;     Dean   r.   Davis,   51   Cal.,   406; 

216.  Oregon,  etc.,  Ry.  Co.  v.  Standing, 

o'l  Savings    &    Loan     Society     v.  10  Utah,  452    37  Pac,  687. 

Austin,  46  Cal.,  415;    Houghton  r.  'i"  Savings    &    Loan     Society     v. 

Austin,   47  Cal.,  646;     Central   Pa-  Austin,  46   Cal.,   415. 

fific   R.   Co.   V.   Corcoran,   48   Cal.,  "^  Bridge    Company    v.    Commis- 


CHAP.  VIII.]  AGAINST  TAXES.  459 

assessment  and  collection  of  taxes,  nor  will  it  revise  their 
decision  upon  matters  within  their  discretion  if  they  have 
acted  honestly.^'^  "Where,  therefore,  a  particular  manner  is 
provided  by  law,  or  a  particular  tribunal  designated,  for  the 
settlement  and  decision  of  all  errors  or  inequalities  in  behalf 
of  persons  dissatisfied  with  a  tax,  they  must  avail  themselves 
of  the  legal  remedy  thus  prescribed,  and  will  not  be  allowed 
to  waive  such  relief  and  seek  in  equity  to  enjoin  the  collec- 
tion of  the  tax.  And  this  upon  the  ground  that  where  one  has 
a  complete  and  ample  remedy  at  law  and  slumbers  upon  his 
rights,  he  is  estopped  from  invoking  the  aid  of  equity.'''"  And 
where  a  state  board  for  the  equalization  of  taxes,  acting  under 
the  law  and  within  the  scope  of  their  authority,  have  fixed  the 
value  of  the  capital  stock  and  franchises  of  a  corporation  for 
purposes  of  taxation,  although  they  may  have  erred  in  judg- 
ment, their  action  can  not  be  impeached  except  for  fraud,  and 
equity  will  not  enjoin  proceedings  for  the  enforcement  of  the 
tax  because  of  errors  in  judgment  upon  the  part  of  such 
board.'^^     While,  therefore,  in  such  case,  if  the  valuation  were 

sioners  of  Wyandotte  Co.,  10  Kan.,  "o  Hughes   v.   Kline,    30    Pa.    St., 

326.  227;      Macklot     v.     Davenport,    17 

69  Albuquerque   Bank    v.     Perea,  Iowa,   379;     Merrill   v.   Gorham,    6 

147  U.  S.,  87,  13  Sup.  Ct.  Rep.,  194;  Cal.,  41;    Peoria  v,  Kidder,  26  111., 

Livingston  v.  Hollenbeck,  4  Barb.,  351;    West  Portland  Park  v.  Kelly, 

9;     Clinton,    etc..    Appeal,    56    Pa.  29  Ore.,  412,  45  Pac,  901;    Oregon 

St.,   315;     O'Neal    v.     Virginia    B.  &  Washington  M.   S.  Bank  v.  Jor- 

Co.,  18  Md.,  1;    Porter  v.  Rockford.  dan,  16  Ore.,  113,  17  Pac,  624;    H. 

R.  I.  &  St.  L.  R.  Co.,  76  111.,  561;  &  T.  C.  R.  Co.  v.  Presidio,  53  Tex.. 

Ottawa   Glass   Co.   v.   McCaleb,   81  518;    Duck  v.  Peeler,  74  Tex.,  263, 

111.,  556;    Traders  Ins.  Co.  v.  Far-  11  S.  W.,  1111;    Northern  Pac.  R. 

well,  102  111.,  413;    Texas  &  P.  R.  Co.  v.  Patterson,  10  Mont.,  90,  24 

Co.  V.  Harrison  Co.,  54  Tex.,  119;  Pac,  704;    First  National  Bank  v. 

Mclntyre  v.  Town  of  White  Creek,  Bailey,  15  Mont.,  301,  39  Pac,  83; 

43   Wis.,    620.     And   see   Heywood  Deloughrey    r.    Hinds,     23     Mont, 

V.   Buffalo,   14   N.   Y.,  534;     Mayor  260,  58  Pac,  709.       See    Chisholm 

V.  Meserole,  26  Wend.,  132,  revers-  v.  Adams,   71  Tex.,  678,  10   S.  W., 

ing   S.    C,    8     Paige,   198;     Union  336. 

Trust   Co.   V.  Weber,   96    111.,    346;  7i  porter  r.  Rockford,  R.  I.  &  St. 

National  Bank  r.  Staats,  155  Mo.,  L.  R.  Co.,  76  111.,  561;  Ottawa  Glass 

55,  55  S.  W.,  626.  Co.  v.  McCaleb,  81   111.,  556.     And 


460  INJUNCTIONS.  [CHAI'.  VIII. 

SO  grossly  excessive  as  to  afford  evidence  of  fraud  in  the 
action  of  the  officers,  equity  might  interfere,  yet  if  the  bill  con- 
tains only  general  and  argumentative  averments,  without  giv- 
ing the  necessary  data  or  facts  from  which  the  court  can  de- 
termine that  there  has  been  a  grossly  excessive  valuation,  the 
injunction  will  be  denied."^  And  if  the  taxpayer  may  have 
adequate  relief  for  excessive  taxation  by  an  appeal  or  applica- 
tion to  a  board  of  review  or  equalization,  but  neglects  to  avail 
himself  of  such  remedy,  he  will  be  denied  relief  by  injunction.'^^ 
Or  if  a  remedy  exists  by  appeal  from  the  action  of  the  revis- 
ing board,  of  which  the  taxpayer  fails  to  avail  himself,  he  will 
not  be  allowed  the  aid  of  an  injunctionj*  And  where  an  ag- 
grieved taxpayer  has  made  application  for  redress  to  a  board 
of  review  but  the  latter  has  refused  to  hear  or  consider  his 
complaint,  equitable  relief  against  the  tax  is  properly  refused 
because  of  his  failure  to  exhaust  his  legal  remedy  by  mandamus 
against  the  board. "^  If,  however,  the  tax  is  levied  upon  prop- 
erty which  is  by  law  exempt  from  taxation,  it  is  held  that  the 
statutory  remedy  by  application  to  a  board  of  review  is  only 
cumulative,  and  that  the  taxpayer  may,  at  his  election,  seek 
his  remedy  by  injunction  in  the  first  instance.^*^  And  where 
the  function  of  a  statutory  board  of  equalization  is  merely  to 
correct  errors  in  the  valuation  of  property  which  has  been 
properly  assessed,  it  is  not  necessary  to  appeal  to  such  board 
where  it  is  sought  to  enjoin  a  tax  upon  the  ground  that  it  is 

see    Pacific    Hotel    Co.    v.    Lieb,   83  N.    E.,   988;     Kinley    Mfg.    Co.    v. 

111.,    602;       Union     Trust     Co.    v.  Kochersperger,  174   111.,  379,  51  N 

Weber,  96   111.,  346.  E.,  648;     New  Haven  Clock  Co.   v, 

72  Pacific    Hotel   Co.   v.   Lieb,    83  Kochersperger,  175  111.,  383,  51  N. 

111.^  602.  E.,    629;     White    i'.    Raymond,   18S 

^■■i  Meyer    r.    Rosenblatt,    78    Mo.  111.,  298,  58  N.  E.,  976;  Coxe  Bros. 

495.  &  Co.  r.  Salomon,  188  111.,  571,  59 

74  Preston    v.    Johnson,    104    111.,  N.    E.,    422;     Standard    Oil    Co.    v. 

625.  Magee,  191  111.,  84,  60  N.  E.,  802. 

71  Beidler  r.   Kochersperger,   171  "'•  Illinois     Central     R.     Co.     v. 

111.,   563,    49    N.    E.,   716;    Kochers  Hodges,  113  111.,  323. 
perger   r.    Larned,   lt2    111.,   86,   49 


CHAP.  VIII.]  AGAINST  TAXES.  461 

entirely  without  authority  of  law,  as  where  the  property  haf 
been  listed  and  taxed  in  another  county  or  is  exempt  from  tax- 
ation.''"^ 

§  494.  Fraudulent  conduct  or  excess  of  authority  by  board 
of  equalization  ground  for  injunction.  Notwithstanding  the 
well  established  doctrine  as  above  discussed,  denying  any 
supervisory  power  in  courts  of  equity  to  revise  the  action  of 
boards  of  review  or  equalization  charged  with  the  duty  of 
revising  and  equalizing  valuations  and  assessments,  there  have 
been  instances  of  equitable  interference  by  injunction  to  pre- 
vent the  enforcement  of  taxes  based  upon  such  arbitrary, 
illegal  or  oppressive  action  upon  the  part  of  these  boards  as  to 
amount  to  a  fraud  against  the  taxpayer,  or  to  threaten  a  cloud 
upon  his  title,  thereby  bringing  the  case  within  the  established 
jurisdiction  of  courts  of  equity .'^^  And  where  a  state  board  for 
the  equalization  of  taxes  undertakes  to  fix  valuations  upon 
taxable  property  through  prejudice  or  a  reckless  disregard  of 
duty,  and  makes  a  grossly  arbitrary  and  unreasonable  vaula- 
tion,  an  injunction  is  regarded  as  the  appropriate  remedy .'^^ 

TT  Court    V.    O'Connor,    65   Tex.,  board,  then  it  is  plain  that    this 

334;     Davis  v.  Burnett,  77  Tex.,  3,  assessment,   because    in    violation 

13  S.  W.,  613.  of   that    rule   and   consistent   with 

"s  Chicago,  B.  &  Q.  R.  Co.  v.  Cole,  no  other  reasonable  theory  of  val- 
75  111.,  591;  Paul  v.  Pacific  R.  Co,  uation,  can  not  be  the  honest  judg- 
4  Dill.,  35;  South  Platte  Land  Co.  ment  of  a  majority  of  that  board. 
V.  Buffalo  Co.,  7  Neb.,  253.  And  It  is  an  arbitrary  and  unreason- 
see  Wiley  V.  Flournoy,  30  Ark.,  able  valuation.  Because  the  law 
609;  Pacific  Hotel  Co.  v.  Lieb,  83  has  devolved  on  the  board  of  equal- 
Ill.,  602.  ization,  and  not  on  the  courts,  the 

'9  Chicago,  B.  &  Q.  R.  Co.  v.  Cole,  duty   of  making   such   valuations, 

75  111.,  591.    The  court,  Mr.  Justice  we  hold  it  is  not  the  duty  of  the 

Scholfield    delivering    the    opinion,  courts  to  exercise  any  supervisory 

say,  p.  592:    "If,  as  it  must  be  to  care  over  its  valuations  so  long  as 

be  sustained,  the  rule  adopted  by  it  acts  within  the    scope    of    the 

the  board  of  equalization  by  which  powers  with  which  it  is  invested, 

to   be   governed    in    making    this  and   in   obedience   to   what   might 

class  of   assessments,   may   be  re-  reasonably  be  presumed  to  be  an 

garded  as  the  honest  expression  of  honest    judgment,    however    much 

judgment    of    a    majority   of  the  we   may  disagree    with    it.     But 


462  INJUNCTIONS.  [chap.  VIII. 

So  where  a  state  board  of  equalization  had  exceeded  its  juris- 
diction, which  was  limited  to  equalizing  the  aggregate  valuation 
of  county  boards,  and  had  acted  as  an  original  assessing  body 
and  had  made  an  assessment  de  novo,  an  injunction  was  granted 
against  the  collection  of  the  tax  thus  assessed  which  was  in 
excess  of  the  aggregate  amount  fixed  by  the  county  boards.^^ 
So  where  a  state  board  of  tax  commissioners  possessed  no 
original  jurisdiction  in  the  assessment  of  property  but  only 
by  way  of  appeal,  there  assumption  of  such  jurisdiction  is 
void,  and  a  tax  based  upon  an  increase  in  an  assessment  made 
by  them  will  be  enjoined.^^  And  wiiere,  after  the  adjourn- 
ment of  a  board  of  equalization  without  making  any  change 
in  the  valuation  of  the  lands  in  controversy,  a  change  is  sub- 
sequently made  without  authority  of  law,  increasing  the  valua- 
tion, an  injunction  may  be  allowed  against  the  extension  of  the 
tax  upon  the  tax  books.  In  such  case  the  relief  is  proper  for 
the  purpose  of  preventing  a  cloud  upon  title,  since  the  legality 
of  the  assessment  would  not  necessarily  appear  upon  the  face 
of  a  tax  deed,  and  the  deed  would  therefore  constitute  a  cloud 
upon  the  title  to  complainant's  land.^^  gQ  where  a  board  of 
county  officers,  acting  as  a  board  of  equalization,  have  made  a 
new  and  largely  increased  assessment  of  complainants'  lands, 
without  authority  and  without  notice  or  opportunity  to  be  • 
heard,  such  unauthorized  action  is  held  to  warrant  an  injunc- 
tion against  the  tax.^^     And  the  especial  ground  for  relief  in 

whenever  the  board  undertakes  to  reasonableness    of     its    valuations 

go   beyond    its   jurisdiction,   or   to  will  justify  equitable  interference, 

fix    valuations    through    prejudice  but  its  valuations  must  be  the  re- 

or  a  reckless  disregard  of  duty,  in  suit  of  honest  judgment,  and  not 

opposition    to    what    must   neces-  of  mere  will." 

sarily  be  the  judgment  of  all  per-  »«  Paul  v.  Pacific  R.  Co.,  4  Dill., 

sons   of   reflection,   it   is   the  duty  35. 

of  the  courts  to  interfere  to  pro-  si  Eaton  v.  Union  County  Bank, 

tect  tax  payers  against  the  conse-  141  Ind.,  136,  40  N.  E.,  668. 

quences    of    its    acts.     Where   its  *"-  Wiley   r.   Flournoy,    30    Ark., 

jurisdiction   is   conceded   no    mere  609. 

difference   of  opinion    as     to    the  «^  South  Platte  Land  Co.  v.  Buf- 


CHAP.  VIII.]  AGAINST  TAXES.  463 

such  case  is  found  in  the  fact  that  the  proceedings  are  regu- 
lar upon  their  face,  but  require  extrinsic  evidence  to  show  their 
invalidity,  and  they  therefore  threaten  a  cloud  upon  complain- 
ants' title.8-^ 

§  495.    Want  of  notice  to  taxpayer  of  increa^eld  valuation. 

As  regards  the  question  of  want  of  notice  to  the  taxpayer 
before  an  increase  of  his  assessment  at  the  hands  of  a  revisory 
board,  the  authorities  are  not  altogether  uniform.  Thus,  it 
has  been  broadly  held  that  where  an  assessment  of  personal 
property  has  been  reduced  by  a  town  board  of  revision,  and 
afterward  raised  to  the  original  amount  by  a  county  board  of 
supervisors  without  notice  of  their  intended  action  to  the  prop- 
erty owner,  the  tax  is,  to  the  extent  of  such  increase,  an  unau- 
thorized assessment  by  persons  having  no  authority,  and  as 
such  it  may  be  enjoined.^^  So  where  the  taxpayer  is  entitled 
by  law  to  an  examination  of  the  assessment  roll  and  to  a  hear- 
ing as  to  the  correctness  of  his  assessment^  and  this  right  is 
denied  him,  it  is  held  that  an  injunction  will  lie  to  prevent  the 
collection  of  the  tax.^^  And  when  the  valuation  Iras  been 
largely  increased  by  a  board  of  county  officers,  without  notice 
to  the  taxpayer  and  without  opportunity  to  be  heard,  an  in- 
junction has  been  allowed  as  to  the  taxes  assessed  upon  the 
excess  over  the  original  valuation.^^  And  where  a  taxpayer 
has  delivered  a  schedule  of  his  taxable  property  to  the  asses- 
sor by  whom  it  has  been  accepted  and  the  assessment  made, 
the  board  of  review  has  no  power  to  increase  such  valuation 
without  notice,  and  the  extension  or  collection  of  a  tax  based 
upon  such  unauthorized  increase  will  be  enjoined.^^  jsjor  jg  j^; 
necessary  in  such  case  to  show  that  the  unauthorized  assess- 

falo  Co.,  7  Neb.,  253;  McConkey  v.  st  County       Commissioners       v. 

Smith,  73  111.,  313.  Union  Mining  Co.,  61  Md.,  545. 

Si  South  Platte  Land  Co.  v.  Buf-  ss  Ruling  v.  Ehrich,  183  111.,  315, 

falo  Co.,  7  Neb.,  253.  55  N.  E.,  636;    Cox  r.  Hawkins,  193 

85  Darling   v.   Gunn,  50  111.,  424.  111.,  68,  64  N.  E.,  1093. 

86  Woodman  v.  Attorney-General, 
52  Mich.,  28,  17  N.  W.,  227. 


464  INJUNCTIONS.  [chap.  VIII. 

nient  is  in  excess  of  the  fair  valuation  of  the  property  since 
the  defect  is  jurisdictional.^^  And  where  a  board  of  county 
commissioners,  acting  without  notice  to  the  taxpayer,  has 
ordered  an  increase  in  plaintiff's  assessment  as  made  by  the 
assessor  and  accepted  by  the  board  of  equalization,  a  tax 
based  upon  such  increase  is  illegal  and  void  and  its  enforce- 
ment will  be  enjoined.9"  And  in  such  case  the  fact  that  the 
plaintiff"  subsequently  appears  before  the  board  and  seeks  to 
have  the  tax  reduced  is  no  waiver  of  the  want  of  notice  or  of 
the  right  to  equitable  relief.^i  Upon  the  other  hand,  it  is 
held  that  while  it  may  be  the  duty  of  a  board  -of  review  to 
notify  a  resident  taxpayer  before  increasing  the  assessor's 
valuation  of  his  property,  the  failure  to  give  such  notice  is 
not  a  jurisdictional  defect  which  renders  the  tax  void,  but  at 
the  most  a  mere  irregularity  not  available  for  purposes  of 
relief  in  a  court  of  equity,  when  it  does  not  work  a  substan- 
tial injustice  to  the  person  aggrieved.  Where,  therefore,  such 
want  of  notice  does  not  result  in  injustice,  the  valuation  of  the 
property  as  fixed  by  the  board  not  being  in  excess  of  its  actual 
valuation  as  required  to  be  assessed  by  law,  and  not  being  dis- 
proportionate to  other  valuations  in  the  same  town,  no  suffic- 
ient ground  is  presented  for  relief  by  injunction.^^  And  where 
a  statute  provided  that  an  assessment  should  not  be  raised 
without  notice  or  an  opportunity  to  be  heard,  and  further  pre- 
scribed the  time  lor  the  meeting  of  the  board  of  equalization, 
the  statute  was  held  to  be  notice  not  only  of  the  meeting  of 
the  board  but  of  all  adjournments,  even  though  sine  die,  and 
an  injunction  was  therefore  refused  against  a  tax  founded  upon 

«»  Ruling  V.  Ehrich,  183  111.,  315,  Kan.,  360,  25  Pac,  854;    Topeka  W. 

55  N.  E.,  63h-    Mercantile  National  S.  Co.  r.  Roberts,  45  Kan.,  363,  25 

Bank  v.  Hubbard,  45  C.  C.  A.,  66,  Pac,   855. 

105  Fed.,  809.  si  Topeka   City   Ry.   Co.   v.   Rob- 

f'o  Commissioners      of       Leaven-  erts,   45   Kan.,  360,   25  Pac.  854. 

worth  Co.    r.    Lang,    8  Kan.,  284;  "^  Mclntyre    r.    Town    of    White 

Topeka  City  Ry.  Co.  r.  Roberts,  45  Creek.  43  Wis.,  020. 


'CHAP.  VIII.]  AGAINST  TAXES.  465 

an  increase  in  plaintiff's  assessment  which  was  made  with  no 
notice  other  than  that  of  the  statute."^ 

§  496.  Unconstitutionality  of  law,  conflict  of  authority. 
Upon  the  question  of  the  unconstitutionality  of  a  tax,  or  of 
the  law  under  which  it  is  imposed,  as  affording  ground  for 
equitable  relief  by  injunction  against  its  enforcement,  the 
decisions  of  the  courts  have  been  far  from  harmonious.  The 
rule  has  been  broadly  asserted  that  if  the  law  under  which  the 
tax  is  imposed  is  in  conflict  Avith  the  constitution  of  the  state, 
a  court  of  equity  may  entertain  jurisdiction  by  injunction  to 
prevent  the  enforcement  and  collection  of  the  tax.^*  And 
where  the  legislature  of  the  state,  acting  in  violation  of  the 
constitution,  has  appointed  certain  officers  and  organized  them 
into  a  private  corporation  known  as  drainage  commissioners, 
and  has  vested  them  with  the  power  of  assessing  taxes,  such 
assessments  being  in  violation  of  the  constitution  of  the  state, 
the  issuing  of  tax  deeds  upon  sales  of  land  made  for  non-pay- 
ment of  such  assessments  has  been  enjoined.^^  So  proceedings 
under  a  tax  have  been  enjoined  because  in  violation  of  a  con- 
stitutional provision  reciuiring  uniformity  in  the  rate  of  tax- 
ation.^*' The  decided  weight  of  authority,  however,  supports 
the  doctrine  that  the  unconstitutionality  of  the  law  under 
which  a  tax  is  imposed  does  not  justify  relief  by  injunction 
against  its  enforcement.  The  collection  of  the  tax,  under  such 
circumstances,  is  regarded  as  a  simple  tort  or  trespass,  sus- 
ceptible of  compensation  in  damages  at  law,  and  since  relief 
by  injunction  against  a  tort  rests  wholly  upon  the  inedequacy 

93  Lander    v.    Mercantile    Bank,  not  notice  where  the  adjournment 

186   U.    S.,   458,   22   Sup.   Ct.   Rep.,  was    without    day,    and     they   ac- 

908,     reversing     S.     C,     55    C.     C.  cordingly    held    that    the    plaintiff 

A.,    523,    118     Fed.,    785,    and   af-  was  entitled  to  relief, 

firming     S.      C,      98      Fed.,      465.  o-i  Bristol    v.   Johnson,   34    Mich , 

In    Mercantile     National     Bank    v.  123;    Kerr  v.  Wooley,  3  Utah,  456, 

Hubbard,     45     C.    C.    A.,      66,     105  24  Pac,  831. 

Fed.,   809,   the   Court    of    Appeals  as  Gage  v.  Graham,  57  111.,  144. 

had     previously     taken    the    view  oo  Knowlton    v.     Supervisors,    9 

that  the   statute   in  question    was  Wis.,  410. 
30 


i66 


INJUNCTIONS, 


[chap.  VIII. 


of  the  legal  remedy,  the  fact  that  the  law  under  which  defend- 
ant is  about  to  proceed  in  the  collection  of  the  tax  is  unconsti- 
tutional and  void  will  not  justify  a  court  of  equity  in  extending 
relief  by  injunction.'-^"  In  this  apparent  want  of  uniformity 
in  the  decisions  of  the  courts,  the  better  doctrine  is  believed 
to  be  that  which  makes  the  right  to  relief  by  injunction  in  such 
cases  conditional  upon  the  inadequacy  of  the  remedy  at  law. 
And,  indeed,  there  is  express  authority  for  holding  that  where 
the  tax  is  unconstitutional,  and  no  adequate  remedy  exists  at 
law,  and  where  the  injury  from  its  enforcement  would  prove 
irreparable,  and  would  threaten  the  destruction  of  complain- 
ant's franchise,  an  injunction  may  properly  be  granted.^^     So 


9-  Shelton  v.  Piatt,  139  U.  S., 
591,  11  Sup.  Ct.  Rep.,  646,  re- 
versing S.  C,  39  Fed.,  712;  Al- 
len V.  Car  Co.,  139  U.  S.,  658,  11 
Sup.  Ct.  Rep.,  682;  Pacific  Ex- 
press Co.  V.  Seibert,  142  U.  S.,  339, 
12  Sup.  Ct.  Rep.,  250,  affirming 
S.  C,  44  Fed.,  310;  Arkansas 
Building  Assn.  v.  Madden,  175  U. 
S.,  269,  20  Sup.  Ct.  Rep.,  119;  In- 
diana Mfg.  Co.  V.  Koehne,  188  U. 
S.,  681,  23  Sup.  Ct.  Rep.,  452;  Me- 
chanics Bank  v.  Debolt,  1  Ohio  St., 
591;  Exchange  Bank  v.  Hines,  3 
Ohio  St.,  1;  United  Lines  T.  Co. 
V.  Grant,  137  N.  Y.,  7,  32  N.  E., 
1005;  Blue  Jacket  C.  C.  Co.  v. 
Scherr,  50  West  Va.,  533,  40  S.  E., 
514.  See  also  North  Carolina  R. 
Co.  V.  Commissioners,  82  N.  C, 
259;  Crawford  v.  Bradford,  23 
Fla.,  404,  2  So.,  782;  People  v.  Dis- 
trict Court  of  the  Tenth  Judicial 
District,  29  Col.,  182,  68  Pac,  242. 
In  Exchange  Bank  v.  Hines,  3  Ohio 
St.,  1,  Bartley,  C.  J.,  delivering  the 
opinion  of  the  court,  says:  "The 
bill  seeks  relief  against  an  alleged 
threatened  trespass,  and  avers  the 
defendant's  pecuniary   inability   to 


respond  in  adequate  damages.  If 
the  law  under  which  the  defendant 
is  about  to  proceed  be  wholly  un- 
constitutional and  void,  as  is  al- 
leged in  the  bill,  the  defendant 
would  be  liable  to  damages  in  an 
action  at  law,  to  the  extent  of  the 
injury  which  might  be  done  to  the 
complainant  by  the  threatened 
wrong.  Equitable  relief  by  in- 
junction against  a  tort  rests 
wholly  upon  the  inadequacy  of  the 
remedy  at  law.  It  is  well  settled 
that  a  court  of  chancery  will  not 
interfere  by  injunction  to  prevent 
a  simple  trespass,  susceptible  of 
compensation  in  damages  in  a 
proceeding  at  law,  whether  about 
to  be  committed  in  the  pretended 
collection  of  a  tax,  or  otherwise; 
and  to  authorize  the  interference 
of  this  extraordinary  power  there 
must  be  a  case  of  apparent  immi- 
nent danger  of  great  and  irrep- 
arable damage,,  for  which  an  ac- 
tion at  law  would  not  furnish  full 
indemnity.  Mechanics  Bank  r. 
Debolt,  1  Ohio  St.,  591." 

9«  Foote  r.  Linck,  5  McLean,  616. 


llIAr.  VIII.]  AGAINST  TAXES.  467 

the  relief  may  be  granted  upon  the  ground  of  the  unconstitu- 
tionality of  the  law  where  the  pursuit  of  the  legal  remedy 
would  subject  the  taxpayer  to  the  burden  of  a  multiplicity  of 
suits.»» 

§  497.  Payment  or  tender  of  legal  tax  a  condition  to  relief. 
No  principle  of  the  law  of  injunctions  is  more  firmly  estab- 
lished than  that  requiring  a  taxpayer  who  seeks  the  aid  of  an 
injunction  against  the  enforcement  or  collection  of  a  tax,  to 
first  pay  or  tender  the  amount  which  is  conceded  to  be  legally 
and  properly  due.  Applying  the  maxim  that  he  who  would  have 
equity  must  first  do  equity,  the  courts  have  almost  uniformly 
required,  where  a  definite  portion  of  the  tax  was  conceded  to 
be  justly  due  and  payable,  that  the  complaining  taxpayer 
should  first  pay  or  tender  the  amount  admitted  to  be  due, 
before  extending  preventive  relief  by  injunction  as  to  the 
residue.  Where,  therefore,  complainant  has  not  paid  that  por- 
tion of  the  tax  which  is  clearly  valid,  to  which  no  objection  is 
offered,  and  which  may  readily  be  distinguished  from  the 
illegal  portion,  the  injunction  will  be  denied,  since  the  col- 
lection of  a  legal  tax  will  never  be  restrained  to  prevent  the 
enforcement  of  an  illegal  one,  and  since  a  court  of  equity  will 
not  lend  its  extraordinary  aid  by  injunction  to  one  who  himself 
refuses  to  do  equity .^     And  in  all  such  cases  the  bill  itself 

99  Sanford   v.   Poe,   16    C.    C.   A.,  pervisors,    16    Wis.,    185;    Bond    v. 

305,  69  Fed.,  546,  60  L.  R.  A.,  641.  Kenosha,    17    Wis.,    284;     Mills    v. 

In  this  case  the  Court  of  Appeals,  Johnson,  17   Wis.,  598;     Howes  v. 

following   the   construction   placed  Raciile,     21     Wis.,     514;     Mills     i\ 

upon  the  law   in   question  by  the  Charleton,    29    Wis.,    400;    Kaehler 

Supreme  Court  of   Ohio,  held   the  v.  Dobberpuhl,  56  Wis.,  480,  14  N. 

statute   to  be   valid.     They  never-  W.,   644;     Palmer   v.   Napoleon,   16 

theless   recognize   the    rule   as  an-  Mich.,  176;     Merrill  v.  Humphrey, 

nounced  in  the  text.  24    Mich.,   170;    Pillsbury   v.   Hum- 

1  Northern  Pacific  R.  Co.  V.  Clark,  phrey,    26    Mich.,    245;     Taylor    v. 

153   U.   S.,   252,   14   Sup.    Ct.   Rep.,  Thompson,  42  111.,  10;    Swinney  v. 

809;     Peoples    National     Bank     r.  Beard,  71   111.,  27;    Board  of  Com- 

Marye,  191  U.  S.,  272,  24  Sup.  Ct.  missioners   v.  Elston,   32   Ind.,  27; 

Rep.,     68;       State     Railroad     Tax  Brown  r.  Herron,  59  Ind.,  61;  City 

Cases,  2  Otto,  575;     Hersey  r.  Su-  of  Delphi  v.  Bowen,   61     Ind.,   29; 


468 


INJUNCTIONS. 


[chap.  VIIT, 


must  show  what  portion  of  the  tax  is  legal  and  what  illegal, 
in  order  that  the  court  may  be  enabled  to  properly  discriminate 
between  them,  and  to  determine  what  portion  of  the  entire  tax 
should  be  paid  and  w^hat  enjoined.-  Nor  is  it  a  sufficient  ever- 
ment  of  payment  or  tender  to  allege  that  complainants  are 
willing  to  pay,  or  that  they  will  pay  into  court  that  portion  of  the 
tax  which  they  admit  to  be  due,  and  if  the  court  can  ascertain 
from  the  bill  that  any  part  of  the  tax  ought  to  be  paid,  it  will 
require  actual  payment  or  tender  of  such  portion  before  inter- 


Mulliken   v.   Reeves,   71   Ind.,   281; 
Mesker  v.  Koch,  76  Ind.,  68;   Stilz 
V.    City  of   Indianapolis,    81     Ind., 
582;     Board   of   Commissioners     v. 
Dailey,  11.5  Ind.,  360,  17  N.  E.,  619; 
Hyland  v.  C.  I.  &  S.  Co.,  129  Ind., 
68,  28  N.  E.,  308,  13  L.  R.  A.,  515; 
Smith  V.  Rude  Bros.  Mfg.  Co.,  131 
Ind.,  150,  39  N.  E.,  47;     Smith  r. 
Bank,  131  Ind.,  201,  39  N.  E.,  48; 
Thiebaud  r.  Tait,  138  Ind.,  238,  36 
N.  E.,  525;   County  Commissioners 
V.  Union  Mining  Co.,  61  Md.,  545; 
Brown  r.  School  District,  12  Ore., 
345,  7  Pac,  357;    Welch  v.  Clatsop 
County,  24  Ore.,  452,  33  Pac,  934; 
Dayton    r.   Multnomah   County,   34 
Ore.,  2S9,    55    Pac,    23;     Alliance 
Trust   Co.    V.    Multnomah    County, 
38   Ore.,  433,   63   Pac,  498;     Hunt- 
ington  r.   Palmer,   7   Sawyer,  355; 
Burlington  &  M.  R.  Co.  v.  York  Co., 
7  Neb.,  487;    Her  r.  Colson,  8  Neb., 
331;     London  v.   City  of  Wilming- 
ton,  78   N.   C,   109;     Covington  v. 
Town    of    Rockingham,    93    N.    C, 
134;     Rio  Grande  R.   Co.  v.  Scan- 
Ian,  44  Tex.,  649;    Blanc  v.  Meyer, 
59  Tex.,  89;    Rosenberg  v.  Weekes, 
67   Tex.,   578,  4   S.   W.,  899;    Over- 
all V.  Ruenzi,  67  Mo.,  203;     Burn- 
ham  r.   Rogers,  16?  Mo.,  17,  60  S. 
"W.,    970;      Parmley     v.     Railroad 


Companies,  3  Dill.,  25;  City  of  Ot- 
tawa v.  Barney,  10  Kan.,  270;  City 
of  Lawrence  v.  Killam,  11  Kan.. 
499;  Hagaman  v.  Commissioners 
of  Cloud  Co.,  19  Kan.,  394;  Wilson 
V.  Longendyke,  32  Kan.,  267,  4 
Pac,  361;  Tallassee  Manufactur 
ing  Co.  V.  Spigener,  49  ^la.,  262; 
Alabama  Gold  Life  Ins.  Co.  v. 
Lott,  54  Ala.,  499;  City  Council  v 
Sayre,  65  Ala.,  564;  Worthen  v. 
Badgett,  32  Ark.,  496;  Wells,  Far- 
go &  Co.  r.  Crawford  County,  63 
Ark.,  576,  40  S.  W.,  710,  37  L.  R. 
A.,  371;  Quint  v.  Hoffman,  103 
Cal.,  506,  37  Pac,  514;  Collins  v. 
Green,  10  Okla.,  244,  62  Pac,  813; 
Lasater  r.  Green,  10  Okla.,  335,  62 
Pac,  816;  Halff  v.  Green,  10  Okla., 
338,  62  Pac,  816;  Russell  v. 
Green,  10  Okla.,  340,  62  Pac,  817- 
Blue  Jacket  C.  C.  Co.  r.  Scherr,  50 
West  Va.,  533,  n  S.  E.,  514. 

-  Palmer  v.  Napoleon,  16  Mich., 
176;  Taylor  v.  Thompson,  42  III., 
10.  But  in  Briscoe  v.  Allison,  43 
111.,  291,  it  is  held  that  whenever 
the  court  can  ascertain  from  the 
bill  the  proportion  which  the 
illegal  bears  to  the  legal  tax,  the 
former  should  be  enjoined  and  the 
latter  collected. 


CHAP.  Tin.]  AGAIXST  TAXES.  469 

fering.-"^  And  it  has  even  been  held  that  where  the  tender  is 
refused  by  the  tax  collector,  it  must  be  made  good  by  payment 
into  court  of  the  amount  due.^  Nor  is  it  sufficient  to  aver  in 
the  bill  that  complainants  are  ready  and  willing  to  pay  what- 
ever amount  may  be  found  to  be  due.^  Nor  is  a  mere  offer  to 
do  equity  enough.*''  And  an  allegation  that  complainant  has 
paid  all  taxes  which  he  is  legally  liable  to  pay  is  not  sufficient 
within  the  meaning  of  the  rule,  since  it  is  only  an  averment  of  a 
legal  conclusion  and  not  of  a  fact.  The  bill  should,  therefore,  in: 
all  cases  allege  the  facts  and  particulars  which  will  enable  the 
court  to  determine  whether  the  legal  conclusion  is  warranted 
by  the  facts.'^  And  the  general  doctrine  under  discussion  has 
even  been  carried  to  the  extent  of  requiring,  where  the  valid 
and  the  void  taxes  are  separable,  and  the  amount  of  the  valid 
tax  can  be  readily  ascertained,  that  complainant  should  act- 
ually pay  the  legal  as  a  condition  precedent  to  relief  against 
the  illegal  tax.*  The  courts  have  not,  however,  in  all  cases 
required  actual  payment  of  the  legal  tax  before  granting  relief 
as  to  the  residue,  but  have  generally  regarded  a  tender  of 
payment  as  sufficient,  although  it  is  not  doubted  that  it  is 
within  the  power  of  a  court  of  equity  to  require  actual  pay- 
ment as  a  condition  precedent  to  granting  relief.^    And  where 

3  Parmley  v.  Railroad  Companies,  Kan.,  499.  And  it  is  held  in  Indi 
3  Dill.,  25;  Bank  v.  Ferris,  55  ana,  that  when  any  portion  of  the 
Kan.,  120,  39  Pac,  1042.  But  see  tax  which  it  is  sought  to  enjoin  is 
City  of  Meridian  v.  Ragsdale,  67  actually  due,  it  should  be  paid  or 
Miss.,  86,  6  So.,  619.  tendered     before     the     commence- 

4  Bundy  v.  Summerland,  142  ment  of  the  suit  for  an  injunction. 
Ind.,  92,  41  N.  E.,  322.  Brown  v.  Herron,  59  Ind.,  61;  City 

5  State  Railroad  Tax  Cases,  2  of  Delphi  v.  Bowen,  61  Ind.,  29. 
Otto,   575.  But    in    Clement     i\     Everest,     2& 

B  Chicago,  B.  &  Q.  R.  Co.  v.  Board  Mich.,  19,  it  is  held  that  when  the 

of  Commissioners,  14  C.  C.  A.,  458,  bill   shows   the   exact    amount    of 

67  Fed.,  413.  the  illegal  and  excessive  tax,  and 

"  Alabama  Gold  Life  Ins.  Co.  v.  only  seeks  to  enjoin  such  excess,. 

Lott,  54  Ala.,  499;    Insurance  Co.  the  objection  that  it  does  not  ten- 

V.  Bouner,  24  Col.,  220,  49  Pac,  366.  der  payment  of  the  legal  tax  is  of 

8  Mills  t\  Johnson,  17  Wis.,  598;  no  force. 

City   of   Lawrence    r.    Killam,   11  o  See  Mills  v.  Charleton,  29  Wis.;,. 


470  INJUNCTIONS.  [chap.  VIII. 

the  plaintiff  makes  a  tender  in  good  faith  believing  it  to  be 
the  amount  due  but  it  appears  he  is  mistaken  in  the  amount 
and  the  tender  is  insufficient,  the  bill  should  not  be  dismissed 
but  the  plaintiff  should  be  given  an  opportunity  to  amend 
and  make  tender  of  the  correct  amount.^*^  And  when  the  tax 
is  justly  and  legally  due  from  the  property  owner,  he  will  not 
be  allowed  to  enjoin  the  issuing  of  a  tax  deed  under  a  sale  for 
non-payment  of  such  tax,  without  first  paying  or  tendering  to 
the  purchaser  the  amount  of  the  tax  actually  paid  by  him.'^ 
And  it  has  been  held  that,  to  warrant  relief  against  the  collec- 
tion of  a  tax  claimed  to  -be  void,  the  plaintiff'  must  allege  and 
prove  that  the  property  was  listed  and  returned  for  assess- 
ment at  its  triie  cash  value.^- 

§498.  The  rule  illustrated;  not  applicable  to  entire  illegal 
assessment.  In  conformity  with  and  as  illustrating  the  gen- 
eral doctrine  as  above  stated,  it  is  held  that  a  bill  in  equity 
w'hicli  seeks  to  enjoin  the  enforcement  of  taxes,  but  which 
makes  no  distinction  between  those  which  are  properly  as- 
sessed and  those  which  are  presumed  to  have  been  assessed 
without  authority  of  law,  and  wiiich  seeks  to  enjoin  the  whole, 
can  not  be  entertained.  And  that  portion  of  the  tax  which 
is  legal  should  first  be  paid  before  equity  can  properly  inter- 
fere to  restrain  the  illegal  portion,  since  otherwise  the  collec- 
tion of  the  entire  tax  might  be  delayed  by  a  litigation  which 
might  in  reality  involve  but  an  inconsiderable  portion  of  the 
amount   justly   due.^^      So   where   it  is   sought  to   enjoin  the 

400;    Dean  v.  Borchsenius,  30  Wis.,  case,  must  keep  his  tender  good  by 

237.  bringing    the     money     into     court, 

1"  Chicago,  B.  &  Q.  R.  Co.  v.  and  that  an  averment  of  his  will- 
Board  of  Commissioners,  14  C.  C.  ingness  to  pay  is  insufficient.  Mor- 
A.,  458,  67  Fed.,  413.  rison  v.  Jacoby,  114  Ind.,  84,  14  N. 

11  Whitehead    t:    Farmers'    Loan  E.,   546,    15    N.    E.,    806.      And   see 

&   Trust   Co.,   39   C.    C.    A.,   34,   98  Hewett   r.   Fenstamaker.   128   Ind., 

Fed.,   10;     Moore  v.   Wayman,  107  315,  27  N.   E.,  621. 

111.,  192;  Harrison  v.  Haas,  25  Ind.,  i- Alva   State   Bank  v.   Renfrew, 

281 ;    Rowe   v.    Peabody,    102    Ind.,  10  Okla.,  26,  62  Pac,  285. 

198.     And   it   is   held   in   Indiana,  i;' Tallassee    Manufacturing    Co. 

that  the   property  owner,  in   such  t\   Spigener,  49   Ala.,  262. 


CHAP.  VIII.]  AGAINST  TAXES.  471 

collection  of  an  entire  tax  upon  the  ground,  among  others,  that 
the  law  under  which  it  is  levied  fails  to  make  provision  for 
proper  deductions  and  it  appears  upon  the  face  of  the  plead- 
ings what  deductions  should  have  been  allowed,  the  failure  to 
pay  the  amount  equitably  due  is  good  ground  for  refusing  an 
injunction;  but  in  such  case  the  court  may  direct  that  the 
dismissal  of  the  bill  be  without  prejudice  in  order  that  the 
plaintiff  may,  if  he  so  elect,  pay  what  is  equitably  due  and  then 
institute  further  proceedings.^^  So  where  a  county  clerk  in 
extending  uncollected  taxes  of  previous  years  with  those  of 
the  current  year,  has  computed  interest  on  such  back  taxes  at 
a  higher  rate  than  that  allowed  by  law,  the  excess  will  not  be 
enjoined  when  the  bill  does  not  aver  payment  or  a  readiness  to 
pay  the  amount  legally  due.^°  And  where  it  is  sought  to  enjoin 
taxes  levied  for  a  given  year  upon  the  ground  that  the  county 
officers  have  exceeded  their  authority  by  levying  a  greater 
percentage  upon  the  valuation  of  property  than  they  Avere  au- 
thorized by  law  to  do,  such  excess  being  levied  to  pay  a  judg- 
ment rendered  against  the  county  for  the  expenses  of  previous 
years,  it  is  error  to  grant  the  injunction  against  the  whole 
excess  as  an  entirety,  when  the  bill  fails  to  show  the  amount  of 
the  tax  levied  in  such  previous  years  for  the  payment  of  the 
expenses  of  those  years.^*'  So  an  injunction  will  not  lie  to 
prevent  the  assignment  of  certificates  of  tax  sales  because  of 
irregularities  in  assessing  the  lots  in  gross,  levying  the  taxes 
in  excess  of  the  legal  rates,  and  the  want  of  sufficient  notice  of 
the  time  of  sale,  unless  complainant  shall  first  pay  or  tender 
the  taxes  which  are  justly  due.^'^  And  the  execution  of  a 
certificate  of  conveyance  of  lands  for  tax  sales  will  not  be  en- 
joined unless  complainant  will  pay  all  taxes  which  are  legally 
due  and  chargeable  upon  the  lands. ^^'^    So  a  purchaser  of  lands 

14  Peoples      National      Bank     v.        i"  Hagaman  v.  Commissioners  of 
Marye,  191  U.  S.,  272,  24  Sup.  Ct.     Cloud  Co.,  19  Kan.,  394. 

Rep..  68.  18  Worthen  v.   Badgett,   32   Ark., 

15  Swinney  v.  Beard,  71   111.,  27.     496. 
ic  Commissioners  of  Osborne  Co. 

V.  Blake,  19  Kan.,  299. 


472  INJUNCTIONS.  [chap.  VIII. 

at  a  foreclosure  sale,  since  he  takes  the  lands  subject  to  unpaid 
taxes  and  assessments,  can  not,  if  such  taxes  are  a  legal  incum- 
brance upon  the  lands,  enjoin  the  issuing  of  a  tax  deed  under 
a  sale  for  such  unpaid  taxes  without  first  tendering  the  full 
amount  of  taxes  which  are  justly  due.^''  And  where  it  is  sought 
to  enjoin  the  placing  upon  the  tax  duplicate  of  an  entire  tax 
levy,  a  part  of  which  is  valid,  the  relief  will  be  denied,  since 
the  requirement  that  the  plaintiff  do  equity  applies  with  the 
same  force  in  such  a  case  as  in  an  action  to  enjoin  the  collec- 
tion of  a  tax  already  upon  the  duplicate.-^  It  is  held,  however, 
that  the  general  rule  requiring  payment  or  tender  of  the 
amount  actually  due  as  a  condition  to  equitable  relief  against 
the  illegal  portion  of  the  tax,  has  no  application  to  a  case  where 
the  entire  tax  fails  by  reason  of  an  illegal  assessjnent,  And 
in  such  case  an  injunction  is  proper  without  payment  or  tender 
of  any  portion  of  the  tax,  since  it  is  impossible  for  the  court 
to  determine  what  portion  is  actually  due,  there  being  no  valid 
or  legal  tax  assessed.^^  And  the  rule  under  discussion  has  no 
application  where  the  tax  or  assessment  is  made  upon  a  basis 
so  false  and  unwarranted  as  to  afford  no  data  from  which  the 
amount  of  the  tax  properly  chargeable  may  be  determined.-- 
And  where  the  plaintiff'  is  seeking  to  restrain  not  the  collectioEL 
of  the  tax  itself  but  merely  the  extension  of  Jhe  tax  upon  an 
unauthorized  increase  in  the  plaintiff's  assessment,  the  rule 
does  not  apply  where  the  amount  of  the  tax  which  is  equitably 
due  is  not  known  at  the  time  the  suit  was  begun.-^ 

19  Her  V.  Colson,  8  Neb.,  331.  335,  26  N.  E.,  672;  Yocum  v.  Bank, 

20  Shepardson  r.  Gillette,  133  144  Ind.,  272,  43  N.  E.,  231;  Bld- 
Ind.,  125,  31  N.  E.,  788.  well  r.  Huff,  103  Fed.,  362;    Zehn- 

21  Marsh  v.  Supervisors  of  Clark  der  v.  Barber  Asphalt  Co.,  106  Fed., 
Co.,  42  Wis.,  502;  Norwood  v.  Bak-  103.  And  see  Morris  i\  Merrell,  44 
er,  172  U.  S.,  269,  293,  19  Sup.  Ct.  Neb.,  423,  62  N.  W.,  865. 

Rep.,  187;    Peoples  National  Bank  22  Howell   t\   City  of  Tacoma,   ". 

V.  Marye,  191  U.  S.,  272,  24  Sup.  Ct.  Wash.,   711,    29   Pac,   447,   28   AIu. 

Rep.,    68;    Fargo    v.    Hart,    193    U.  St.  Rep.,  83. 

S.,  490,  24  Sup.  Ct.  Rep.,  498;   Hy-  2.-t  Cox  v.   Hawkins,   199   HI.,   6S,. 

land  V.  Brazil  B.  C.  Co.,  128  Ind.,  64  N.  E.,  1093. 


CHAP.  Till.]  AGAINST  TAXES.  473^ 

§  499.  The  rule  as  affected  by  legislation.  As  regards  the 
effect  of  legislation  upon  the  question  above  discussed,  where 
an  act  of  legislature  prohibits  the  granting  of  any  injunction 
against  the  collection  of  certain  taxes,  unless  plaintiff  shall 
first  pay  all  taxes  remaining  unpaid,  whether  regularly  assessed 
or  not,  and  further  provides  that  if  it  shall  appear  upon  the 
hearing  that  the  amount  paid  by  plaintiff  was  not  the  full 
amount  justly  chargeable  upon  his  land,  the  action  shall  be 
dismissed,  it  is  held  that  the  statute  applies  only  to  pro- 
ceedings to  enjoin  the  collection  of  taxes  irregularly  assessed, 
and  not  to  cases  where  relief  is  sought  against  taxes  which 
are  inherently  unjust  and  inequitable.  Such  legislation,  there- 
fore, is  not  in  derogation  of  the  bill  of  rights  in  a  state  con- 
stitution, declaring  that  every  person  is  entitled  to  a  certain 
remedy  in  the  laws  for  all  injuries  or  wrongs  that  he  may 
receive,  and  it  will  be  upheld  as  constitutional.  And  under 
such  a  statute  an  action  to  enjoin  the  collection  of  the  tax 
should  be  dismissed  if  it  appears  that  that  plaintiff  has  omitted 
to  pay  the  taxes  assessed  which  are  not  shown  to  be  void  upon 
the  merits  or  unjust  in  principle,  even  though  there  are  techni- 
cal objections  to  the  taxes  assessed  upon  some  of  the  lots  or 
parcels.-^  And  while,  in  such  case,  the  fact  that  several  lots 
or  parcels  were  valued  together,  although  owned  by  different 
persons  and  not  occupied  as  one  parcel,  would  if  shown  as  to 
all  the  lots  entitle  plaintiff  to  an  injunction,  yet  if  shown  only 
as  to  a  part  of  the  lots,  the  relief  will  be  denied.-^ 

§  500.  Fraud  as  a  ground  for  relief ;  when  purged  by  appeal. 
Fraud  has  been  held  a  sufficient  ground  to  warrant  a  court  of 
equity  in  a  departure  from  the  general  rule  of  non-interference 
with  the  collection  of  taxes.  And  an  allegation  of  fraud  in 
the  levying  of  a  tax  for  an  unauthorized  purpose  is  regarded 
as  sufficient  to   give  a  court  of  equity  jurisdiction.-"^     Thus, 

24  Whittaker  r.  City  of  Janes-  2e  Leitch  v.  Wentworth,  71  111.,, 
ville.  33  Wis.,  76.  146. 

25  Id. 


474  INJUNCTIONS.  [chap.  VIII. 

where  an  assessor,  having  accepted  without  objection  a  list  of 
taxable  property,  afterward  and  without  notice  arbitrarily  in- 
creases the  list,  the  taxpayer  having  no  knowledge  of  the 
matter  until  after  the  time  for  redress  at  law  has  expired  by 
limitation,  the  collection  of  the  tax  may  be  enjoined.^'^  So  the 
relief  has  been  allowed  against  the  enforcement  of  taxes  im- 
posed for  the  payment  of  judgments  obtained  through  fraud 
and  collusion.-^  And  in  such  case,  the  persons  to  whom  the 
illegal  tax,  if  collected,  would  be  paid  are  not  necessary  par- 
ties to  the  suit  for  the  injunction.^^  But  equity  will  not  in- 
terpose to  restrain  the  collection  of  a  tax  for  the  payment  of 
judgments  rendered  against  a  municipal  corporation,  on  the 
ground  that  the  bonds  on  which  the  judgments  were  founded 
were  without  consideration,  and  were  obtained  by  fraud,  where 
such  defense  might  have  been  pleaded  to  the  action  at  law.^'^ 
And  where  fraud  is  relied  upon  as  a  ground  for  relief  against 
excessive  taxation,  the  proof  of  fraud  must  be  clear  and  ir- 
resistible, and  the  resulting  injury  must  be  a  serious  one.^' 
Nor  will  the  relief  be  allowed  because  the  judgments  are  for 
an  amount  greater  than  that  actually  due,  the  mistake  hav- 
ing occurred  through  complainant's  carelessness,  and  no  aj:)- 
plication  having  been  made  to  correct  the  judgment  in  the 
court  in  which  it  was  obtained.-''-  But  a  fraudulent  combina- 
tion which  has  been  entered  into  between  bidders  at  a  tax  sale 
and  the  collector  whose  duty  it  is  to  sell,  the  purpose  of  such 

27  Cleghorn     v.     Postlewaite,     43  28  Newcomb   r.   Horton,   18   Wis., 

111.,   428;    First   National   Bank  of  566;    Leitch  c.  Wentworth,  71   111., 

Shawneetown  v.  Cook,  77  111.,  622.  146. 

But  where  the  assessor  has  never  -'•>  Leitch   v.   Wentworth,   71    111., 

accepted  the  valuation  placed  upon  146. 

the  property  by  the  plaintiff  and  3o  Muscatine  v.  Mississippi  &  M. 

proceeds  to  place  a  higher  valua-  R.  Co.,  1  Dill.,  536. 

tion    upon    it    without   notice,    the  si  Union  Trust  Co.  r.  Weber,  96 

relief  will  be  denied  since  there  is  111.,  346. 

no  increase  in  the  valuation  adopt-  "-  Muscatine  v.  Mississippi  &  M. 

ed    by    the    assessor.       Tolman     v.  R.  Co.,  1   Dill.,  536. 
Salomon,    191    111.,    202,    60    N.    E., 
809. 


CHAP.  VIII.]  AGAINST  TAXES.  475 

combination  being  to  prevent  competition  at  the  sale  and  to 
allow  the  property  to  be  struck  off  to  a  particular  purchaser, 
by  reason  of  which  all  bidding  at  the  sale  is  wholly  prevented, 
is  held  to  constitute  sufficient  ground  for  enjoining  the  issu- 
ing of  tax  deeds  upon  the  certificates  of  such  sales,^^  or  the 
issuing  of  the  certificates  themselves.^*  And  where,  pending 
a  litigation  between  a  taxpayer  and  a  county  concerning  taxes 
which  have  been  levied  upon  plaintiff's  property,  a  compromise 
is  effected  by  which  plaintiff  is  to  pay  a  given  sum  in  settle- 
ment, upon  compliance  with  such  agreement  plaintiff  may  en- 
join the  collector  from  enforcing  the  taxes  as  originally  as- 
sessed.^^  But  where  fraud  upon  the  part  of  an  assessor  is  re- 
lied upon  as  the  basis  for  equitable  relief  against  the  collec- 
tion of  a  tax,  an  appeal  from  the  action  of  the  assessor  to  the 
board  of  review  is  held  to  purge  the  original  assessment  of  the 
taint  of  fraud  where  there  is  no  showing  that  the  reviewing 
board  itself  has  been  guilty  of  any  improper  or  fraudulent  con- 
duct.3® 

§  500  a.  Arbitrary  discrimination  in  assessment.  The  aid  of 
equity  is  frequently  invoked  for  relief  against  taxes  where  the 
assessor  or  assessing  board  has  made  an  arbitrary  or  wilful 
discrimination  against  a  taxpayer,  whereby  his  property  is 
assessed  at  a  higher  rate  than  other  property  subject  to  taxa- 
tion; and  in  such  cases  injunctions  are  freely  granted  against 
the  collection  of  a  tax  based  upon  such  arbitrary  or  capricious 
valuation.  Thus,  where  the  officers  intrusted  by  law  with  the 
duty  of  making  an  assessment  have  fraudulently  assessed  prop- 
erty above  its  real  value,  for  the  purpose  of  relieving  resident 
taxpayers  from  their  due  proportion  of  the  taxes,  and  have 
not  exercised  their  judgment  upon  the  valuation,  but  have 
arbitrarily  made  an  excessive  assessment,  it  is  proper  to  enjoin 

33  Gage  V.  Graham,  57  111.,  144.  36  Burton  Stock  Car  Co.  v.  Trae- 

34G10S  V.  Swigart,  156   111.,  229,  ger,  187  111.,  9,  58  N.  E.,  418.    Sea 

41  N.  E.,  42.  Spring  Valley  Coal   Co.  v.   People, 

35  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  157  111.,  543,  41  N.  E.,  874. 

Anthony,  73  Mo.,  431. 


476  INJUNCTIONS.  [chap.  VIII. 

the  sale  of  lands  for  the  excess  in  such  assessnient.^'^  So  relief 
will  be  granted  where  plaintiff's  property  has  been  assessed  for 
taxation  at  its  full  valuation,  as  required  by  law,  while  all 
other  property  is  assessed  at  only  a  fractional  part  of  its  full 
valuation.2^  And  the  relief  is  granted  in  such  cases  regardless 
of  the  question  of  motive  or  fraudulent  intent  upon  the  part  of 
the  assessing  officer.^^  So  also  where  an  assessor  has  fraudulent- 
ly and  intentionally  adopted  a  rule  or  system  of  valuation  which 
is  designed  to  operate  unequally  among  different  classes  of 
taxpayers,  thereby  violating  the  fundamental  requirements  of 
uniformity  of  taxation,  equitable  relief  is  properly  granted. 
Thus,  where  property  consisting  of  mortgages  upon  real  es- 
tate has  been  rated  at  its  full  valuation,  while  the  mortgaged 
property  itself  is  assessed  at  but  one-fourth  of  such  valuation, 
an  injunction  will  be  allowed  against  the  enforcement  of  the 
tax.^*^  So  where  an  assessor  has  arbitrarily  and  fraudulently 
assessed  plaintiff's  property  at  a  rate  which  is  grossly  exces- 
sive and  which  is  entirely  disproportionate  to  the  rate  at  which 
like  property  owned  by  other  persons  has  been  valued,  a  case 
is  presented  for  relief  by  injunction  against  the  collection  of 
the  tax.'^i  It  is  to  be  observed,  however,  that  in  all  such  cases 
the  relief  is  not  extended  to  the  entire  tax  but  only  to  that 

37  Merrill  r.  Humphrey,  24  Mich.,  sessed  at  a  less  rate.    Albuquerque 

170;    California  &  0.   Land  Co.  v.  Bank  v.   Perea,   147   U.    S.,   87,   13 

Gowen,  48  Fed.,  771.  Sup.  Ct.  Rep.,  194. 

"S  Mercantile  Natl.  Bank  r.  Mayor,  so  Mercantile  Natl.  Bank  r.  May- 

172  N.  Y.,   35,   64  N.   E.,  756;    Chi-  or,   172    N.    Y.,   35,   64   N.   E.,   756; 

cago,   B.   &  Q.  R.  Co.   v.   Board  of  Chicago,  B.  &  Q.  R.  Co.  v.  Board  of 

Commissioners,    54    Kan.,    781,     39  Commisioners,    54     Kan.,     781,    39 

Pac,  1039;   Taylor  v.  L.  &  N.  Co.,  Pac,  1039. 

31  C.  C.  A.,  537,  88  Fed.,  350;  Rail-  4o  Andrews   v.    King    County,     1 

road  &  Telephone  Co.  r.  Board  of  Wash.,  46,  23  Pac,  409,  22  Am.  St. 

Equalizers,    85    Fed.,    302.         But  Rep.,  136. 

where  plaintiff's  own  property  is  ^i  Oregon  &  Cal.  R.  Co.  v.  Jack- 
assessed  at  but  a  fractional  part  son  County,  38  Ore.,  589,  64  Pac, 
of  the  full  valuation  required  by  307,  65  Pac,  369;  Pacific  P.  T.  Co. 
law,  the  relief  will  be  denied  al-  v.  Dalton,  119  Cal.,  604,  51  Pac.,. 
though    all    other   property    is   as-  1072. 


€HAP.  VIII.]  AGAINST  TAXES.  477 

portion  of  the  tax  which  is  based  upon  the  assessment  in  excess 
of  the  rate  at  which  other  property  is  valued  for  taxation.^- 
So  also  relief  should  be  granted  only  upon  the  payment  of 
the  proportion  of  the  tax  which  is  justly  due."*^  And  where 
an  aggrieved  taxpayer  has  appealed  to  a  board  of  equaliza- 
tion from  an  arbitrary  and  capricious  assessment  of  the  as- 
sessor, and  the  board,  although  granting  partial  relief,  refuses 
to  make  the  reduction  claimed  by  the  plaintiff,  relief  will 
be  denied,  even  though  the  valuation  made  by  the  board  may 
appear  unduly  high,  where  there  is  no  charge  that  the  board 
acted  fraudulently  or  arbitrarily  in  arriving  at  their  valua- 
tion.4^ 

§  501.  Omission  of  officer  to  take  oath  or  to  give  bond. 
Upon  the  question  of  the  effect  of  non-compliance  by  the 
officer  charged  with  the  duty  of  fixing  the  amount  of  or  col- 
lecting a  tax,  with  the  formalities  necessary  to  fully  qualify 
him  for  his  office,  the  authorities  are  not  wholly  uniform.  Thus 
it  has  been  held  that  where  a  tax  is  sought  to  be  imposed  for 
a  work  of  public  improvement,  and  the  person  designated  by 
law  to  estimate  the  work  and  to  audit  the  amount  of  each 
owner's  tax  is  not  sworn  as  required  by  law,  the  omission 
to  take  the  oath  will  be  treated  as  fatal  to  the  collection  of 
the  tax,  rendering  it  entirely  void,  and  a  demurrer  to  a  bill 
seeking  to  enjoin  such  tax  will,  therefore,  be  overruled.^^ 
Upon  the  other  hand,  it  would  seem  that  the  omission  of  an 
■officer  charged  by  law  with  the  collection  of  a  tax  to  properly 
qualify  by  giving  the  necessary  bond  required  by  law  affords 

4-  Chicago,    B.    &   Q.    R.     Co.     v.  son  County,   38  Ore.,  589,  64  Pac, 

Board  of  Commissioners,  54  Kan.,  307,    65    Pac,   369. 

781,  39  Pac,  1039;  Mercantile  Natl.  «  Merrill  v.  Humphrey,  24  Mich., 

Bank  r.   M'ayol%  T72  N.   Y.,   35,  64  170. 

N.  E.,   756;    Taylor   v.  L.   &  N.  R  4*  Southern    Oregon   Co.    v.   Coos 

Co.,  31  C.  C.  A.,  537,  88  Fed.,  350;  County,  39  Ore.,  185,  64  Pac,  646. 

Andrews  r.  King  County,  1  Wash.,  ^5  Webb   v.   Cutsinger,     48    Ind., 

46,  23  Pac,  409,  22  Am.   St.  Rep.,  246. 
136;   Oregon  &  Cal.  R.  Co.  r.  Jack- 


47S  INJUNCTIONS.  [CIIAP.  VIII. 

no  ground  for  enjoining  the  collection  of  the  tax.^^  And  upon 
principle  it  is  difficult  to  perceive  any  satisfatcory  reason  why 
the  levj'ing  or  collection  of  a  tax  by  an  officer  de  facto,  whose 
acts  are  otherwise  unquestioned,  should  be  enjoined  by  reason 
of  his  omission  to  fully  comply  with  the-  legal  conditions  re- 
quisite to   the   exercise   of  his   official   functions."*''' 

§  502.  Want  of  power,  ground  for  injunction ;  former  judg- 
ment sustaining  tax.  A  distinction  is  drawn  between  cases 
of  an  irregular  exercise  of  the  taxing  power  or  of  an  informal 
assessment  and  levy,  and  cases  where  there  is  an  entire  absence 
of  any  exercise  of  the  power  and  hence  no  valid  assessment 
or  levy.  And  in  the  latter  class  of  cases,  there  being  no 
exercise  of  the  taxing  power,  what  appears  upon  the  tax 
records  as  a  tax  is  illegal  and  void  and  its  enforcement  may 
be  enjoined.^^  So  if  there  is  a  total  want  of  authority  to 
levy  the  tax,  relief  by  injunction  may  properly  be  allowed.^^ 
And  in  an  action  to  enjoin  the  enforcement  of  taxes  charged 
to  be  illegally  assessed,  it  is  a  sufficient  defense  to  show  that 
the  validity  of  the  taxes  in  question  was  fully  determined  in 
a  former  action  between  the  same  parties  to  restrain  the  col- 
lection of  such  taxes.^*^ 

§  503.  The  Illinois  doctrine.  It  is  the  established  doctrine 
in  Illinois,  that  a  tax  will  not  be  enjoined  unless  it  is  void, 

40  Hall  V.  Houston  &  T.  C.  R.  Co.,  -t**  Brandirff  v.  Harrison    Co.,    50 

39  Tex.,  286.  Iowa,    164.        See   also     Decker    v. 

47  See  Cooley  on   Taxation,  187,  McGowan,  59  Ga.,  805;   Savannah, 

190,  191,  where  the  subject  of  the  Y.   &    W.    R'y    v.    Morton,    71    Ga., 

validty  of  the  action  of  officers  de  24;    Conner's   Appeal,  103   Pa.    St., 

tacto     is     fully    and    exhaustively  356. 

discussed,   and    the    conclusion    is  ^i'  Town  of  Lebanon  v.  Ohio  &  M. 

reached  by  the  learned  author  that  R.    Co.,    77    111.,    539;     Kimball     v. 

the  general   policy  of   the   law,  as  Merchants  S.   L.  &  T.  Co.,  89   111., 

indicated    by   the    clear   and    very  611;    Allwood    v.    Cowen,   111    III., 

strong    preponderance    of    author-  481 ;    .Tones   v.  Davis,  35  Ohio  St., 

ity,  is,  that  the  acts  of  officers  de  474.     See  also  Simpkins  v.  Ward, 

1acto   should    be   sustained    in    tax  45  Mich.,  559,  8  N.  W.,  507. 

cases  under  like  circumstances  and  •'>'>  Breeze  v.  Haley,  11  Col.,  351, 

for   the   same    imperative    reasons  18  Pac,  551. 
■which  sustain  them  in  other  cases. 


CHAP.  Yin.]  AGAINST  TAXES.  479 

or  levied  without  authority  of  law,  or  unless  the  property  is 
exempt  from  taxation,  or  unless  there  has  been  a  fraudulent 
assessment  at  too  high  a  rate.-'''i  And  when  the  property  taxed 
is  liable  to  the  tax  imposed  upon  it  and  the  law  has  authorized 
the  tax  to  be  imposed,  and  when  it  is  levied  by  the  persons 
designated  by  law  for  that  purpose,  equity  will  not  interfere 
by  injunction  to  prevent  the  enforcement  of  the  tax.  Stated 
in  other  words,  the  Illinois  doctrine  is,  that  equity  will  not  en- 
join a  tax  unless  the  property  is  exempt  from  taxation,  or  the 
tax  is  not  authorized  by  law,  or  unless  the  persons  imposing 
the  tax  have  no  power  conferred  upon  them  by  law  to  make 
the  levy.^2  Where,  however,  without  authority  of  law,  a  tax 
levy  is  made  in  excess  of  the  proper  and  uniform  legal  rate 
of  taxation,  the  collection  of  such  excess  may  properly  be  en- 
joined.^^  So  where  the  jurisdiction  of  the  assessing  ofificer 
had  previously  ceased,  the  tax  will  be  restrained.^^  So  where 
a  tax  levied  upon  the  property  of  one  person  is  charged  against 
another,  the  latter  may  restrain  its  enforcement.^^  And  an 
injunction  will  lie  to  restrain,  not  only  the  collection  of  a 
tax  levied  by  town  officers  for  a  purpose  for  which  they  could 
Qot  legally  make  a  levy,  but  the  use  of  the  money  already  col- 
lected.^^ So  also  equity  will  restrain  the  collection  of  a  tax 
in  excess  of  the  two  per  cent,  limitation  provided  by  law.^^ 
So  also  where  property  is  taxable  in  one  town,  relief  will  be 

51  Munson  v.  Miller,  66  111.,  380;  Porter  v.  Rockford,  R.  I.  &  St.  L. 

Porter  v.  Rockford,  R.  I.  &  St.  L.  R.  Co.,  76   111.,  561;    Chicago  &  N. 

R.  Co.,  76  111.,  561;    Ottawa  Glass  W.  R.  Co.  v.  Miller,  72  111.,  144. 

Co.  V.  McCaleb,  81  111.,  556;  Moore  r,4  School  Directors  v.  School  Di- 

V.  Wayman,  107  111.,  192;   Wabash,  rectors,  135  111.,  464,  28  N.  E.,  49. 

St.  L.  &  P.  R.  Co.  V.  Johnson,  108  •"  irvin  v.   Railroad   Co.,  94   111., 

111.,  11;    New   Haven   Clock  Co.  v.  105;     Searing    v.    Heavysides,    106 

Kochersperger,  175  111.,  383,  51  N.  111.,  85;    Condit  v.  Widmayer,    196 

E.,    629;    Earl    &    Wilson    v.    Ray-  111.,  623,  63  N.  E.,  1078. 

mond,   188    111.,   15,   59   N.   E.,    19;  se  Town  of  Drummer  v.  Cox,  165 

Siegfried  v.  Raymond,  190  111.,  424,  111.,  648,  46  N.  E.,  716. 

60  N.  E.,  868.  5-  Dollahon     v.     Whittaker,     187 

52  Munson  v.  Miller,  66  111.,  380.  111.,  84,  58  N.  E.,  301. 

53  Ramsey  v.  Hoeger,  76  111.,  432; 


•480  INJUNCTIONS.  [chap.  VIII. 

granted  against  a  tax  levied  by  the  authorities  of  another 
town.^s  go  when  the  tax  levy  is  void  because  not  made  within 
the  time  prescribed  by  law,  sufficient  cause  is  presented  for 
an  injunction.^^  And  in  conformity  with  this  general  doc- 
trine recognizing  the  right  to  enjoin  taxes  levied  without  au- 
thority of  law,  or  levied  upon  property  not  subject  to  taxation, 
it  is  held  that  where  back  taxes  for  previous  years  have,  with- 
out authority  of  law,  been  extended  upon  the  assessment  of 
the  current  year,  relief  by  injunction  may  properly  be  al- 
lowed.^*^  While  it  will  thus  be  seen  that  the  courts  of  Illinois 
have  displayed  a  somewhat  marked  liberality  in  the  granting 
of  injunctions  against  the  collection  of  taxes,  the  prevailing 
tendency  at  the  present  time  would  seem  to  be  to  restrict 
rather  than  to  enlarge  the  jurisdiction  and  to  adopt  the  ade- 
quacy of  the  legal  remedy  as  the  test  as  to  the  right  to 
equitable  relief."^ 

§  504.  The  Wisconsin  doctrine.  In  Wisconsin  it  has  be- 
come the  well  established  doctrine  that  the  enforcement  of 
a  tax  may  be  enjoined  which  has  been  assessed  upon  an  im- 
proper or  illegal  basis,  or  when  the  statutory  rule  of  valuation 
has  been  utterly  disregarded  or  violated.*^-  A  valid  assess- 
ment being  regarded  as  the  foundation  of  all  proceedings 
requisite  to  a  uniform  rule  of  taxation,  it  is  held  that  where 
the  mode  of  assessment  prescribed  by  law  has  been  so  violated 
or  disregarded  as  to  render  the  tax  void,  an  appropriate  case 
is  presented  for  equitable  relief  by  injunction.  Drawing  a 
distinction  between  mere  errors  or  mistakes  of  taxing  offi- 
cers, and  a  total  disregard  of  the  requirements  of  the  law 
as    to    the    assessment,    it    is    held    that,    while    in   the    former 

.■58  Vogt  V.  Ayer,  104  111.  583.  And  c^  Hersey  v.  Supervisors  of  Bar- 
see,  post,  §  523  b.  ron  Co.,  37  Wis.,  75;  Salscheider  v. 

no  First  National  Bank  of  Shaw-  City  of  Fort  Howard,  45  Wis.,  519: 

neetown  r.  Cook,  77  111.,  622.  Sohettler  r.  City  of  Fort  Howard, 

(io  Town    of    Leoanon    v.    Ohio   &  43  Wis.,  48;  Goff  r.  Supervisors  of 

M.  R.  Co.,  77  111.,  539.  Outagamie  Co.,  43  Wis.,  55. 

01  See    Williams    r.    Dutton,    184 
111.,  r,08,   r,6  N.   E.,  868. 


CHAP.  VIII.]  AGAINST  TAXES.  481 

class  of  cases  sufficient  ground  may  not  exist  for  equitable 
interference,  in  the  latter  a  court  of  equity  may  properly 
interpose  its  preventive  relief  against  the  enforcement  of  the 
tax.  Where,  therefore,  the  assessor  is  required  by  law  to  make 
a  valuation  from  actual  view  of  the  premises,  using  his  judg- 
ment with  reference  to  each  tract  and  its  value,  but  he  makes 
his  valuation  upon  certain  fixed  and  arbitrary  rules  in  dis- 
regard of  the  statutory  requirements,  it  is  proper  to  enjoin 
the  enforcement  of  the  tax.  The  valuation  being  regarded  as 
essential  to  lay  the  foundation  for  a  lawful  tax,  where  this 
is  made  in  plain  disregard  and  violation  of  the  law,  an  injunc- 
tion is  deemed  the  appropriate  remedy.*^^  So  where  the  asses- 
sor is  required  by  law  to  assess  property  at  the  full  value 
which  it  w^ould  ordinarily  bring  at  private  sale,  but  in  disre- 
gard of  the  statute  he  makes  the  valuation  upon  the  basis  of 
one-third  the  value  of  the  property,  sufficient  ground  is  pre- 
sented for  an  injunction.*'^  And  where  the  assessor,  disre- 
garding the  statute  which  requires  him  to  assess  lands  at  the 
full  value  which  they  would  bring  at  private  sale,  assesses 
them  at  what  he  regards  as  their  value  at  a  forced  sale,  it 
is  held  to  be  such  a  disregard  of  the  statute  as  to  render 
the  assessment  void  and  to  authorize  an  injunction.*"^^  The 
failure,  however,  of  the  assessor  to  verify  the  assessment  roll 
as  required  by  law  does  not  render  void  a  tax  based  thereon, 
and  relief  in  such  case  will  accordingly  be  denied.*'*' 

§505.  Personal  property  tax  not  enjoined;  mill  property; 
payment;  exceptions  to  rule.  As  regards  the  question  of 
equitable  relief  against  a  tax  which  is  levied  upon  or  sought 
to  be  collected  out  of  personal  property,  the  better  con- 
es Hersey  v.  Supervisors  of  Bar-  Wis.,  532,  22  N.  W.,  705,  in  effect 
ron  Co.,  37  Wis.,  75.  overruling  Marsh  r.  Supervisors  of 

•■•^  Schettler  r.  City  of  Fort  How-     Clark    Co.,    42   Wis.,   502;    Wiscon- 
ard,  43  Wis.,  48.  sin  Central  R.  Co.  r.  Lincoln  Co., 

65Goff  r.   Supervisors    of    Outa-     67   Wis.,   478,   30  N.   W.,   619;    fol- 
garaie  Co.,  43  Wis.,  55.  lowed  by  Avant  r.  Flynn,  2  S.  Dak., 

ce  Fifield     r.    Marinette     Co.,     62     153,  49  N.  W.,  15. 
31 


482 


INJUNCTIONS. 


[chap.  VIII. 


sidered  doctrine  and  that  supported  by  the  clear  woio-ht  of 
authority  is,  that  equity  will  not  interfere  by  injunction  to 
restrain  a  levy  upon  or  sale  of  personal  property  in  satisfac- 
tion of  a  tax  which  is  alleged  to  be  illegal.  Even  in  those 
states  which  have  inclined  to  depart  from  the  general  doctrine 
denying  relief  in  equity  against  an  illegal  tax,  the  courts, 
while  contending  for  the  jurisdiction  in  cases  affecting  the 
title  to  real  estate,  nevertheless  refuse  to  interfere  where  only 
personal  property  is  involved  and  leave  the  parties  aggrieved 
to  their  remedy  at  law.  The  act  of  the  officer  making  such 
levy  being  regarded  as  a  mere  trespass  for  which  ample  rem- 
edy may  be  had  at  law,  a  court  of  equity  will  decline  to  lend 
its  aid  b}'  injunction  for  the  prevention  of  such  trespass.*^''' 
And  where  the  bill  seeks  to  restrain  a  taxing  officer  from 
selling  personal  property  for  taxes,  and  complainants  show 
the  exact  damage  in  dollars  and  cents  which  they  would  sus- 
tain by  reason  of  the  sale,  an  injunction  will  not  be  allowed, 


GTDeane  v.  Todd,  22  Mo.,  90; 
Lockwood  V.  St.  Louis,  24  Mo.,  20; 
Van  Cott  v.  Supervisors,  18  Wis., 
247;  Chicago  &  N.  W.  R.  Co.  v. 
Borough  of  Fort  Howard,  21  Wis., 
45;  Quinney  v.  Town  of  Stock- 
bridge,  33  Wis.,  505;  Mayor  v. 
Baldwin,  57  Ala.,  61;  Selma  Build- 
ing Association  v.  Morgan,  57  Ala., 
33;  Baldwin  v.  Tucker,  16  Fla., 
258;  Odlin  v.  Woodruff,  31  Fla., 
160,  12  So.,  227,  22  L.  R.  A.,  699; 
Witherspoon  v.  Nickels,  27  Ark., 
332;  Clarke  v.  Ganz,  21  Minn.,  387; 
Bradish  v.  Lucken,  38  Minn.,  186, 
36  N.  W.,  45-4;  Laird,  Norton  Co. 
V.  County  of  Pine,  72  Minn.,  409, 
75  N.  W.,  723;  Henry  v.  Gregory, 
29  Mich.,  68;  Youngblood  v.  Sex- 
ton, 32  Mich.,  406;  Hagenbuch  v. 
Howard,  34  Mich.,  1;  Mears  v. 
Howarth,  34  Mich.,  19;  Schaffner  v. 
YouiiK.  10  N.  Dak.,  215,  86  N.  W, 


733;  Minneapolis,  etc.  Ry.  Co.  c. 
Dickey  County,  11  N.  Dak.,  107, 
90  N.  W.,  260;  Oregon  etc.  Ry.  Co. 
V.  Standing,  10  Utah,  452,  37  Pac. 
687.  And  see  Thomas  v.  Gain,  35 
Mich.,  155.  An  exception  to  the 
general  inile  of  non-interference 
has  been  recognized  where  the 
property  is  of  peculiar  value  to 
the  owner  or  where  a  valuable 
franchise  would  be  interfered 
with.     City   of   Detroit   v.   Wayne 

Circuit  Judge,  127  Mich.,  604,  

N.  W.,  .     Contra,  Spencer    v. 

Wheaton,  14  Iowa,  38;  Valle  v. 
Ziegler,  84  Mo.,  214;  Searing  v. 
Heavysides,  106  111.,  85;  Phelan 
r.  Smith,  22  Wash.,  397,  61  Pac, 
31;  North  Western  Lumber  Co.  v. 
Chehalis  County,  24  Wash.,  626,  64 
Pac,  787;  Rothwell  v.  County  of 
Knox,  62  Neb.,  50,  86  N.  W.,  903; 
Alexander  r.  Ilonderson,  105  Tenn  , 


CHAP.  Vlll.]  ■        AGAINST  TAXES.  483 

the  proper  remedy  being  at  law.^^  So  in  cases  of  municipal 
taxes  or  assessments  upon  personal  property,  equity  will  not 
interfere  by  injunction  merely  because  of  the  illegality  of  the 
tax,  since  the  person  aggrieved  has  an  adequate  remedy  at 
law  by  an  action  for  the  trespass  which  would  result  from 
enforcing  its  collection.*^^  And  upon  similar  principles  the 
owner  of  a  mill  which  stands  upon  land  belonging  to  another 
person  is  not  entitled  to  an  injunction  to  prevent  a  sale  of  the 
mill  for  taxes,  upon  the  ground  that  it  was  wrongfully  assessed 
with  the  land,  since  if  it  w^ere  thus  improperly  assessed  with 
the  land  and  not  as  the  personal  property  of  the  owner,  a 
court  of  law  could  afford  ample  relief  for  any  injury  which 
might  result  from  a  sale  for  such  taxes.'''*^  Nor  will  equity 
enjoin  the  enforcement  of  a  tax  levied  upon  personal  prop- 
erty because  .it  is  improperly  or  inaccurately  described  upon 
the  tax  rolls,  when  complainant  is  liable  for  the  tax,  and  the 
property  charged  therewith  has  been  in  fact  assessed,  and  the 
assessment  is  neither  excessive  nor  the  valuation  too  large.'^^ 
The  rule,  however,  is  subject  to  some  exceptions;  and  where 
the  property  which  is  about  to  be  seized  for  non-payment  of 
an  alleged  illegal  tax  consists    of   the    rolling  stock  of  a  rail- 

431,  58  S.  W.,  648.    And  in  Peck  v.  tice  in  the  court  of  chancery.     It 

School  District  No.  4,  21  Wis.,  516,  may  well  be  doubted  whether  this 

followed  by  State  v.  Circuit  Court,  doctrine     is    consistent    with    the 

98    Wis.,   143,    73   N.    W.,    788    and  weight  of  the  authorities  cited  in 

Hoff  V.  Olson,  101  Wis.,  118,  76  N.  support  of  the  principles  laid  down 

W.,  1121,  70  Am.  St.  Rep.,  903,  th?  in    the     preceding   sections,    since 

doctrine  is  laid  down  that  the  ob-  the  courts  have  almost  uniformly 

jection   that   the    remedy    of    the  treated  the  objection  that  the  rem- 

party  aggrieved  should  be  sought  edy  was   at  law  as  jurisdictional, 

at  law  rather  than  in  equity  must  regardless  of  whether  the  question 

be  taken  by  demurrer  or  answer,  was  so  presented  by  the  pleadings, 

and  if  not  so  taken  the  relief  by  es  Conley  v.  Chedic,  6  Nev.,  222. 

injunction    will   be    granted.     The  eo  Mayor  v.  Baldwin,  57  Ala.,  61; 

court,  it  is  held,  has  power  to  hear  Baldwin    v.  Tucker,  16   Fla.,   258. 

and  determine  the  action,  and  the  And  see,  post,  §  543. 

objection   that  complainant  has  a  ^o  Witherspoon     r.     Nickels,     27 

remedy  at  law  is  not  jurisdictional,  Ark.,  332. 

and  is  no  more  than  a  rule  of  prac-  "i  Harrison  v.  Vines,  46  Tex.,  15. 


484  INJUNCTIONS.  [chap.  VIII. 

road  or  street  railway  company  which  is  indispensable  to  the 
proper  performance  of  its  functions  as  a  quasi-public  cor- 
poration and  is  consequently  exempt  from  sale  for  taxes,  an 
injunction  is  properly  granted  to  prevent  the  threatened 
seizure  of  such  property,  the  relief  being  based  upon  the 
injury  to  the  public  and  the  consequent  inadequacy  of  the 
legal  remedy.'^-  And  it  has  been  held  proper  to  enjoin  a 
sale  of  personal  property  upon  which  distraint  has  been  made 
for  the  payment  of  taxes  which  have  been  fully  paid  and  dis- 
charged previous  to  the  levy.'^"  And  it  is  also  held  that  where 
the  plaintiff  is  in  possession  of  personal  property  as  assignee 
under  an  assignment  for  the  benefit  of  creditors  and  has 
therefore  presumably  inventoried  the  property  and  is  under 
obligation  to  account  therefor,  and,  in  consequence,  would  be 
greatly  embarrassed  in  the  execution  of  his  trust  by  a  seizure 
and  sale  of  the  property,  such  circumstances  constitute  suffi- 
cient ground  for  an  injunction  against  the  threatened  sale 
of  such  personalty  under  illegal  proceedings  for  the  collec- 
tion of  a  tax  thereon."*  So  it  is  proper  to  grant  a  preliminary 
injunction  against  the  sale  of  chattels  for  the  payment  of  an 
alleged  illegal  tax  until  the  determination  of  the  question  of 
its  legality,  where  the  value  of  the  property  seized  is  grossly 
in  excess  of  the  amount  of  the  disputed  tax.''"^ 

§  506.  Tax  upon  capital  stock  and  franchises  of  corpora- 
tions. Relief  by  injunction  has  sometimes  been  allowed  against 
taxation  imposed  upon  the  capital  stock  of  corporations. 
And  where  it  is  sought  to  enforce  a  tax  against  the  capital 
stock   of  a   foreign   corporation  which   is  not  authorized  by 

T2  Chicago   &  N.    W.   R.    Co.    v.  Ry.    Co.    r.    City   of   Asheville,    69 

Forest  County,  95  Wis.,  80,  70  N.  Fed.,  359. 

W.,  77,  overruling  Chicago  &  N.  W.  ^■'  Lewis  r.  Spencer,  7  West  Va., 

R.  Co.  V.  Borough  of  Ft.  Howard,  689. 

21    Wis.,    45;    City    of    Detroit    v.  ■*  Dawson    r.   Croisan,     18    Ore., 

Wayne  Circuit   .Judge.   127    Mich.,  431,  23  Pac,  257. 

604,  N.    W.,   ;    Southern  "i^' Ex    parte     Chamberlain,       55 

Fed.,  704. 


fllAP.  VIII.]  AGAINST  TAXES.  485 

law,  the  aid  of  an  injunction  may  be  properly  extended  in 
behalf  of  the  corporation.""  So  where  under  a  mistake  as  to 
the  place  where  the  personal  property  of  a  railway  com- 
pany is  to  be  taxed  its  capital  stock  is  taxed  in  a  wrong  lo- 
cality, an  injunction  is  regarded  as  proper.'^^  And  where  the 
entire  capital  stock  of  a  corporation  has  been  invested  in  tan- 
gible property  which  has  been  properly  returned  for  taxa- 
tion, a  tax  levied  upon  such  capital  stock  is  illegal  and  void 
and  its  attempted  enforcement  will  be  enjoined."^  The  relief, 
however,  is  granted  only  to  the  extent  that  the  tangible  assets 
returned  for  taxation  represent  the  investment  of  the  capital 
stock.'^^  And  where  a  statute  provides  that  the  stock  of  a 
building  and  loan  association  shall  be  assessed  against  the 
shareholders  and  the  real  estate  against  the  association,  the 
collection  of  a  tax  upon  the  shares  charged  against  the  asso- 
ciation will  be  enjoined.^^  So,  also,  where  it  is  provided  by 
statute  that  so  long  as  a  corporation  pays  taxes  upon  all  of 
its  property,  the  individual  shareholders  shall  not  be  required 
to  list  their  shares  for  taxation,  equity  may  properly  inter- 
fere to  prevent  the  collection  of  a  tax  levied  upon  such  shares 
where  the  corporation  has  paid  the  taxes  upon  its  corporate 
property .^^  A  court  of  equity  will  not,  however,  lend  its  aid 
by  injunction  to  restrain  the  collection  of  a  tax  upon  the 
capital  stock  and  franchise  of  a  corporation  which  has  been 
equalized  and  fixed  by  a  state  board  of  equalization,  acting 
within  the  scope  of  their  authority  and  under  a  valid  law, 
when  no  fraud  is  shown  and  when  the  property  taxed  is  legally 
liable  to  taxation,  and  the  rule  of  uniformity  has  not  been 

TO  Riley  v.  Western  Union  Tele-  <o  Hyland   r.  C.   I.  &  S.  Co.,  129 

graph  Co.,  47  Ind.,  511.  Ind.,  68,  28  N.  E.,  308,  13  L,  R.  A., 

"  Mohawk  &  H.  R.  Co.  v.  Clute,  515. 

4  Paige,  384.  ^o  Olney  L.   &  B.   Association   v. 

78Hyland    v.    Brazil    B.    C.     Co.,  Parker,  196  111.,  388,  63  N.  E.,  725. 

128  Ind.,  335,  26  N.  E.,  672;   Lew-  si  Louisville  Trust  Co.  v.  Stone, 

iston  W.  &  P.  Co.  ('.  Asotin  County.  46  C.   C.  A.,   299,   107  Fed.,   305. 
24  Wash.,  371,   64  Pac,  544. 


486  INJUNCTIONS.  [chap.  VIII. 

violated.^-  Nor  does  the  fact  that  such  board  may  have 
erred  in  judgment,  in  such  case,  thereby  making  the  assess- 
ment at  too  high  a  rate,  warrant  relief  by  injunction  when 
•they  have  acted  within  the  scope  of  their  authority .^^  But 
when  a  board  of  equalization  undertakes  to  fix  valuations  upon 
the  capital  stock  and  franchise  of  a  corporation,  for  purposes 
of  taxation,  through  prejudice  or  a  reckless  disregard  of 
duty,  and  makes  a  grossly  arbitrary  and  unreasonable  valua- 
tion, equity  may  relieve  by  injunction.  Thus,  where  such 
board  in  fixing  the  valuation  of  the  capital  stock  and  fran- 
chise of  a  railroad  company  has  assessed  it  beyond  its  value, 
by  adding  to  what  they  determine  to  be  the  value  of  the  capi- 
tal stock  not  only  the  indebtedness  of  the  railway  company 
proper,  as  required  by  law,  but  also  the  indebtedness  of  other 
railway  companies  of  which  it  is  lessee,  one  of  which  lies 
entirely  beyond  the  state,  and  for  the  payment  of  none  of 
whose  taxes  is  the  company  liable,  an  injunction  may  be 
allowed.** 

§  507.  Taxation  of  national  banks.  As  regards  the  question 
of  equitable  relief  by  injunction  against  the  taxation  of  the 
capital  stock  of  national  banks,  incorporated  under  the  na- 
tional banking  act  of  the  United  States,  the  federal  courts 
have  undoubted  jurisdiction  to  entertain  a  bill  to  restrain  the 
collection  of  an  illegal  tax  levied  by  state  authorities  upon 
the  capital   stock   of  such  banks.'^"^     The  jurisdiction  in  this 

82  State  Railroad  Tax  Cases,  2  so  Pelton  r.  National  Bank,  101 
Otto,  575;  Porter  v.  Rockford,  R.  U.  S.,  143;  Cummings  v.  National 
I.  &  St.  L.  R.  Co.,  76  111.,  561;  Bank,  101  U.  S.,  153;  First  Nation- 
Ottawa  Glass  Co.  V.  McCaleb,  81  al  Bank  v.  County  of  Douglas,  3 
111.,  556.  Dill.,  298;  Third  National  Bank  v. 

83  Porter  v.  Rockford,  R.  I.  &  St.  Mylin,  76  Fed.,  385;  First  National 
L.  R.  Co.,  76  111.,  561;  Ottawa  Bank  v.  City  of  Covington,  103 
Glass  Co.  V.  McCaleb,  81  111.,  556.  Fed.,  523.  As  to  the  right  to  enjoin 
And  see  Pacific  Hotel  Co.  v.  Lieb,  a  state  tax  in  the  federal  courts, 
83  111.,  602.  see   Wells   v.   Central   Vermont   R. 

84  Chicago.  B.  &  Q.  R.  Co.  r.  Cole,  Co.,  14  Blatch.,  426. 
75  111.,  591. 


CHAP.  VIII.]  AGAINST  TAXES.  487 

class  of  cases  is  usually  invoked  upon  the  ground  of  a  viola- 
tion by  the  state  authorities  of  the  provisions  of  section  5219 
of  the  Kevised  Statutes  of  the  United  States,  which  prohibits 
the  taxation  by  any  state  of  the  shares  of  national  banks  ''at 
a  greater  rate  than  is  assessed  upon  other  moneyed  capital 
in  the  hands  of  individual  citizens  of  such  state."  Under  the 
provisions  of  this  section,  whenever  the  shares  of  national 
banks  are,  under  the  rule  of  assessment  adopted  by  state 
assessors,  taxed  at  a  valuation  largely  in  excess  of  all  other 
classes  of  moneyed  capital,  thus  violating  the  principle  of  uni- 
formity of  taxation  fixed  by  the  constitution  of  the  state, 
equity  may  enjoin  the  enforcement  of  the  excess  of  such 
taxes,  upon  payment  of  the  amount  justly  due.^*'  And  when, 
under  the  laws  of  the  state  for  the  taxation  of  national 
bank  shares,  the  owner  of  the  shares  is  not  allowed  to  de- 
duct from  their  assessed  value  the  amount  of  his  bona  fide 
indebtedness,  as  in  cases  of  other  investments  of  moneyed 
capital,  such  discrimination  constitutes  sufficient  ground  for 
enjoining  the  tax  as  to  shareholders  who  have  been  denied 
such  privilege.^'^  In  such  cases,  when  the  state  law  requires 
the  national  bank  to  report  the  names  of  its  shareholders 
and  the  amount  of  their  shares  for  taxation,  authorizing  the 
bank  to  pay  the  tax  and  to  deduct  the  amount  from  any 
dividends  due  to  the  shareholders,  and  forbidding  the  bank 
to  make  payment  of  any  dividends  upon  such  shares  or  to 
permit  their  transfer,  until  the  tax  is  paid,  the  bank  itself 
may  maintain  a  bill  to  enjoin  such  excessive  taxation.^^     But 

86  Pelton  V.  National  Bank,  101  statutory  provision  in  question  see 

U.  S.   143;    Cummings   r.  National  3  U.  S.  Comp.  Stat.  1901,  p.  3502. 

Bank,    101    U.    S.,    153;    First    Na-  st  Hills   v.    Exchange   Bank,   105 

tional  Bank  v.   City  of  Covington,  U.    S.,    319;    Evansville     Bank     v. 

103   Fed.,   523.     See  also   National  Britton,  105  U.  S.,  322,  affirming  S. 

Albany  Exchange  Bank    r.    Wells,  C,  10  Biss.,  503,  8  Fed.,  867. 

18  Blatch.,  478;    Albany  City  Na-  88  pelton  v.  National    Bank,    101 

tional  Bank   r.   Maher,  19  Blatch.,  U.  S.,  143;    Cummings  v.  National 

175;  First  National  Bank  of  Utica  Bank,   101   U.    S.,    153;    Evansville 

V.  Waters,  19  Blatch.,  242.  For  the  Bank  v.    Britton,   105    U.   S.,   322, 


488  INJUNCTIONS.  [CIIAI'.  VIII. 

the  relief  will  be  refused  when  the  bank  fails  to  pay  or 
tender  the  amount  of  the  tax  which  is  lawfully  due.*^"  And 
an  injunction  will  not  be  granted  because  of  mere  inequal- 
ities in  valuation,  when  it  does  not  appear  that  any  statu- 
tory discrimination  has  been  made  against  complainants, 
or  that  their  shares  are  rated  by  the  assessing  officers 
higher  in  proportion  to  their  actual  value  than  other  mon- 
eyed capital.^^  Nor  will  the  relief  be  granted  unless  it  is 
shown  that  the  shares  are  valued  higher  than  other  mon- 
eyed capital  generally,  and  it  is  not  sufficient  to  allege  that 
such  is  the  fact  in  particular  instances.^^  And  such  shares 
of  stock  being  properly  taxable  bj-  the  states,  the  federal 
courts  will  not  enjoin  the  collection  of  a  tax  imposed 
thereon  by  a  state,  when  it  is  not  shown  that  the  valuation 
of  the  shares  is  excessive,  even  though  the  officers  making 
the  assessment  may  have  arrived  at  a  correct  result  by  an 
erroneous  method.^-  Nor  will  mere  irregularities  in  the  as- 
sessment of  the  tax  and  defects  in  the  construction  of  the 
law  under  Avhich  it  is  levied  afford  ground  for  enjoining 
the  enforcement  of  a  tax  assessed  upon  the  shareholders  of 
a  national  bank."''  But,  although  the  property  of  a  national 
bank  and  its  capital  stock  may  be  taxed  by  state  authority, 
its  right  to  do  business  can  not  be  so  taxed,  and  a  court  of 
equity  may,  therefore,  enjoin  a  tax  which  it  is  sought  to 
levy  by  a  city  government  upon  the  business  of  such  a 
bank.^'*  And  where  the  tax  upon  shares  in  national  banks 
exceeds  the  rate  of  taxation  imposed  upon  banks  of  the 
state,  its  collection  may  be  enjoined,  but  only  upon  pay- 
affirming  S.  C,  10  Biss.,  503,  8  "o  wagoner  i-.  Loomis,  37  Ohio 
Fed.,  867;  Hills  v.  Exchange  Bank,     St.,  571. 

105  U.  S.,  319.       See,  contra.  First         '-'i  First    National    Bank    v.    Far- 
National  Bank  v.  Meredith,  44  Mo.,     well,  10  Biss.,  270. 
500;  Frazer  u.  Slebern,  16  Ohio  St.,         -'-St.    Louis   National     Bank    v. 
614.  Papin,  4  Dill.,  29. 

«••  National  Bank  r.  Kimball,  103         '•'•'  Burke  r.  Speer,  59  Ga.,  353. 
V.  S.,  732.  '■>*  Mayor  r.  First  National  Bank 

of  Macon,  59  Ga..  648. 


CHAP.  VIII. J  AGAINST  TAXES.  489 

ment  of  a  sum  which  shall  be  a  fair  e(iuivalent  for  the  tax  on 
the  banks  of  the  state.^^  And  where  an  illegal  tax  is  levied 
against  the  shareholders  of  a  national  bank  but  is  made  pay- 
able by  the  bank,  the  latter,  in  order  to  prevent  a  multiplicity 
of  suits  may  enjoin  the  extension  of  the  tax;  and  in  such 
case,  it  is  not  necessary  that  the  bank  should  allege  that  it 
has  dividends  on  hand  belonging  to  the  shareholders  out  of 
which  it  would  be  required  to  pay  the  tax  if  extended  and 
enforced.^*'' 

§  508.  Internal  revenue  taxes.  The  circuit  courts  of  the 
United  States  will  interfere  to  restrain  a  collector  of  internal 
revenue  from  the  collection  of  a  tax  improperly  assessed.^"  And 
it  has  been  held  that  the  courts  of  a  state  may  also  interfere 
to  restrain  revenue  officers  of  the  United  States  from  collect- 
ing a  revenue  tax  unauthorized  by  law.''*^  So  if  after  payment 
of  the  full  legal  tax  upon  a  manufactured  article,  the  collector 
threatens  to  levy  upon  the  property  for  an  additional  sum 
in  excess  of  the  legal  tax  justly  due,  he  may  be  enjoined 
from  such  illegal  action."'^  But  a  bill  to  enjoin  the  enforce- 
ment of  a  tax  under  the  revenue  laws,  in  the  nature  of  a 
bill  of  peace,  will  not  lie  in  favor  of  a  number  of  persons 
joined  as  complainants  whose  only  interest  in  common  is  in 
resisting  the  tax,  they  having  no  common  interest  in  the 
subject-matter  on  which  it  is  levied.^  And  where  many 
persons  are  affected  by  the  tax  and  the  remedy  by  suit  in 
equity  will  involve  vexatious  litigation,  the  court  will  not  grant 
the  injunction."*^ 

95  Prazer  v.  Slebern,  16  Ohio  St.,  because  of  improper  joinder  of  par- 

614.  ties.     But  see  Powell  v.  Redfield,  4 

»6  Knopf  r.  First  National  Bank,  Blatch.,  45. 

173  111.,  331,  50  N.  E.,  660.  »■<  Georgia  r.  Atkins,  35  Ga.,  315. 

!•'  Georgia  r.  Atkins,  1  Abb.  U.  S.  "''J  Fryser  /•.   Russell,   3     Hughes. 

R.,   22.     And   this   doctrine  would  227. 

seem  to  be  sustained  by  the  reason-  '  Cutting  i\   Gilbert,    5    Blatch., 

ing  of  the  court  in  Cutting  r.  Gil-  259. 

bert,   5  Blatch.,   259,  although  the  ^'  Id. 
injunction  was  refused  in  that  case 


490  iNJuxcTiONS.  [chap.  VII  r. 

§  509.  Levy  on  property  for  tax  of  another.  Upon  the 
question  of  granting  injunctive  relief  against  a  levy  upon 
the  property  of  one  person  for  the  tax  of  another,  the  authori- 
ties are  not  altogether  harmonious.  The  better  considered 
doctrine,  which  is  based  upon  the  fundamental  principle  deny- 
ing relief  by  injunction  against  the  enforcement  of  taxes  when 
an  adequate  remedy  exists  at  law,  is  that  the  levy  of  a  war- 
rant against  the  property  of  complainant  for  unpaid  taxes 
assessed  against  a  third  person  will  not  ordinarily  be  en- 
joined ;  since  in  such  case  the  officer  levying  the  warrant  would 
be  guilty  of  a  trespass,  the  warrant  giving  him  no  authority  to 
take  property  other  than  that  of  the  person  assessed,  and  the 
remedy  at  law  for  such  a  trespass  would  be  ample.^  Where, 
however,  a  tax  collector  levies  upon  the  property  of  one  per- 
son to  satisfy  a  tax  against  another,  a  court  of  equity  may 
properly  grant  an  injunction  upon  a  bill  alleging  the  insol- 
vency of  the  collector,  the  relief  being  allowed  under  such 
circumstances  because  of  the  inadequacy  of  the  remedy  at 
law.^  And  where  it  is  sought  to  levy  upon  complainant's 
real  property  for  the  tax  of  another,  the  relief  will  be 
granted.^ 

§  510.  Effect  of  legislation  curing  defects.  A  court  of 
equity  will  not  interfere  by  injunction  with  tax  proceedings 
which,  though  originally  defective,  have  been  subsequently 
cured  by  an  act  of  legislature."^  And  although  the  assessment 
of  a  tax  has  once  been  enjoined  by  a  court  of  competent  juris- 
diction, upon  the  ground  of  its  being  unauthorized  by  law, 
it  is  still  competent  for  the  legislative  authority  to  cure  the 
defect  in  the  law,  and  to  authorize  a  re-assessment  of  the  tax. 
And  while  in  such  case  the  injunction  against  the  former  pro- 

3  M.  R.,  F.  S.  &  Gulf  R.  Co.  v.  v.  Widmayer,  196  111.,  623,  63  N.  E., 
Wheaton,    7    Kan.,    232;     White   v.     1078. 

Steuder,  24  West  Va.,  615.     Contra,         ^  Deming  v.  James,  72  111.,  78. 
Rothwell   V.   County   of    Knox,    62         •'"'  Weyse     r.    Crawford,     85     Cal.. 
Neb.,   50,   86   N.   W.,   903;    Irvin    r.     196,  24  Pac,  735. 
Railroad  Co.,  94  111.,  105;    Searing         «  Cogwill    r    Long,  15    111.,   202. 
V.  Heavysides,  106  111.,  85;  Gondii 


CHAl'.  VIII.]  AGAINST  TAXES.  491 

ceedings  remains  a  perpetual  bar  to  the  enforcement  of  that 
assessment,  it  does  not  operate  upon  the  new  proceedings 
taken  under  legislative  authority  for  the  purpose  of  a  re-as- 
sessment, and  such  new  proceedings  are  in  no  sense  a  re-open- 
ing of  the  former  judgment  granting  the  injunction,  that 
judgment  being  only  effective  against  the  former  proceedings.''' 
So  when  an  injunction  has  been  granted  against  the  collection 
of  a  tax  because  of  a  defect  in  the  assessment,  which  defect 
is  remedied  by  a  subsequent  legislative  enactment,  and  a 
new  assessment  is  then  made  under  new  legislative  author- 
ity, the  former  injunction  does  not  operate  as  res  judicata 
to  prevent  such  re-assessment  and  re-levy  of  the  tax.^ 

§511.  Preliminary  proceedings;  extending  tax  on  books. 
The  proceedings  preliminary  to  the  actual  levy  of  a  tax  will 
not  be  enjoined,  whether  it  is  about  to  be  imposed  upon  per- 
sonalty or  realty,  since  the  person  at  whose  instance  the  suit  is 
brought  can  not  from_  the  nature  of  the  case  obtain  redress 
until  the  amount  of  his  own  tax  has  been  ascertained  by 
actual  levy.^  Nor  will  a  county  clerk  be  enjoined  from  ex- 
tending a  tax  upon  the  collector's  books,  unless  it  is  entirely 
unauthorized  and  void  in  toto;  and  if  any  portion  of  the  tax  is 
valid  the  court  will  not  interpose  until  it  is  extended  upon  the 
collector's  books.^*' 

§  512.  Payment  of  taxes ;  set-off.  The  fact  that  the  taxes 
in  question  have  actually  been  paid  affords  sufficient  ground 
for  enjoining  a  sale  of  real  estate  in  satisfaction  of  such 
taxes.ii  But  a  court  of  equity  will  not  enjoin  a  county  treas- 
urer from  applying  for  judgment  for  delinquent  taxes  against 
complainant's  lands  upon  the  ground  that  the  taxes  have 
'already  been  paid,  when  such  payment  can  be  interposed  as 
a  defense  to  the  application  for  judgment,  the  remedy  at  law 

'  Mills  V.  Charleton,  29  Wis.,  400.  »  Miller  v.  Grandy,  13  Mich.,  540. 

And  see   Dean  v.   Borchsenius,   30  lo  Ottawa  Glass  Co.  v.  McCaleb, 

Wis.,  237.                         '  81   111.,  556. 

8  City   of   Emporia   v.   Bates,   16  n  City  of  Logansport  v.  Carroll, 

Kan.,  495.  95   Ind.,  156. 


492  INJUNCTIONS.  [CHAl'.  VIII. 

being  ample  iu  such  case.^^  ]vjor  will  a  tax  be  enjoined  be- 
cause complainant  has  paid  previous  assessments  which  were 
illegal,  and  which  he  now  seeks  to  have  set  off  against  the 
tax  in  question.' '"^  But  a  property  ow^ner  who  has  paid  all 
taxes  assessed  against  him  for  the  years  in  question,  may  en- 
join additional  taxes  imposed  for  the  same  period  without 
lawful  authorit3\'^ 

§  513.  Refusal  of  collector  to  receive  amount  fixed  by  arbi- 
tration. Where  a  bill  in  equity  was  pending  against  a  tax 
collector  to  enjoin  certain  taxes  against  a  private  corpora- 
tion, and  pending  that  proceeding  an  act  of  legislature  was 
passed  appointing  a  designated  officer  to  determine  what 
amount  of  taxes  the  corporation  was  justly  liable  to  pay, 
and  to  certify  such  amount  to  the  tax  collector  who  should 
receive  it  in  full  satisfaction,  upon  compliance  with  the  act 
and  upon  complainant  tendering  the  amount  fixed  by  the 
arbitrator,  which  the  tax  collector  refused  to  receive,  it  was 
held  a  proper  case  for  an  injunction  iu  behalf  of  the  corpo- 
ration to  restrain  the  collector  from  collecting  the  tax.!'"" 

§  514.  Recoupment  of  taxes  not  allowed.  A  county  treas- 
urer who  has  paid  over  to  the  state  treasurer  certain  money 
derived  from  taxes  illegally  assessed  and  collected,  the  money 
having  passed  beyond  his  control  and  into  the  hands  of  the 
state  treasurer,  will  not  be  enjoined  from  paying  over  to  the 
latter  out  of  legal  taxes  subsequently  received  by  him  a  sum 
equal  to  the  illegal  taxes  before  collected;  since  the  granting 
of  the  relief  in  .such  case  would,  in  effect,  be  a  recognition  of 
the  doctrine  of  set-off'  or  recoupment  as  against  a  sovereign 
state.i^ 

§515.  Refusal  of  injunction  confers  no  authority;  decree 
void  as   to  subsequent  taxes.     The   i-efusal   of  an   injunction 

12  Dunham  r.  Miller,  75  111.,  379.  i-Tallassee  Manufacturing  Co.  v. 

I-' Fremont  r.  Early,  11  Cal.,  361.  Glenn,  r)0  Ala.,  489. 

»<  Scott  V.  Knightstown,  84   Ind.,  "■  Shoemaker   r.   Board    of  Com- 

108.     And   see    Hamilton    r.    Ams-  missioners  of  Grant   Co.,   36   Ind., 

.den,  88  Ind.,  304.  175. 


CHAP.  Vlll.J  AGAINST  TAXES.  493 

which  is  sought  against  the  collection  of  taxes  does  not  confer 
upon  the  officers  any  right  or  power  to  collect  the  tax,  but 
merely  leaves  them  possessed  of  such  rights  in  that  behalf  as 
they  had  before  the  refusaL^"  But  where  a  bill  against  a 
county  treasurer  to  enjoin  taxes  prays  relief  only  against  the 
taxes  of  a  particular  year,  and  the  decree  enjoins  the  defend- 
ant and  his  successors  in  office  forever  from  attempting  to 
collect  any  subsequent  tax  upon  the  property  in  question, 
such  decree  will  be  held  void  and  inoperative  as  to  the  subse 
([uent  taxes  and  will  be  set  aside  as  to  them.^^ 

§516.  Unincorporated  company;  illegal  contracts  for  im- 
provements. It  is  held  in  Indiana,  when  taxes  are  about  to 
be  levied  to  be  paid  to  a  turnpike  company  for  the  construc- 
tion of  a  road,  but  the  company  is  not  properly  incorpo- 
rated and  is  without  authority  to  act  and  the  tax  is  illegal, 
that  its  collection  may  be  enjoined.'-*  So  where  the  directors 
of  a  company  organized  for  the  improvement  of  highways 
under  the  laws  of  the  state  have  made  contracts  for  such  im- 
provements with  their  own  members,  such  contracts  being 
illegal,  taxpayers  are  entitled  to  an  injunction  to  prevent  the 
collection  of  taxes  levied  for  the  payment  of  such  improve- 
ments.-^ 

§  517.  When  personal  property  to  be  first  taken.  Where 
under  the  laws  of  the  state  lands  of  the  taxpayer  can  not 
be  sold  for  the  enforcement  of  a  tax  while  he  has  personal 
property  subject  to  taxation  sufficient  to  pay  the  tax,  it  is 
held  that  a  sale  of  his  lands  for  the  unpaid  tax,  when  he  has 
sufficient  personal  property  out  of  which  it  might  be  satis- 
fied, may  be  enjoined.-' 

17  Commissioners  of  Johnson  Co.  21  Abbott  r.  Edgerton,  53  Ind., 
r.  Ogg,  13  Kan.,  198.  196;  Johnson  v.  Hahn,  4  Neb.,  139, 

18  Beach  v.  Shoenmaker,  18  Kan.,  overruling  Hallenbeck  v.  Hahn,  2 
147.  Neb.,   377;    City   of   Logansport   v. 

i»  Knight  V.  Flatrock  &  Waldron  Carroll,  95  Ind.,  156.  See  also 
Turnpike  Co.,  45  Ind.,  134.  McPike  v.  Pen,  51  Mo.,  63. 

-'0  Port  V.  Russell,  36  Ind.,  60. 


494  INJUNCTIONS.  [chap.  VIII. 

§  518.  When  cause  of  action  partly  good.  When  a  bill  is 
filed  to  enjoin  a  tax  and  a  general  demurrer  is  interposed  to 
the  entire  bill  upon  the  ground  that  it  states  no  cause  of  action, 
the  demurrer  should  not  be  sustained  if  the  bill  states  a  good 
cause  of  action  as  to  a  part  of  the  tax  in  question.^-  But  a 
tax  should  not  be  enjoined  as  an  entirety  upon  the  ground  that 
too  much  has  been  assessed.^s 

§  519.  Injunction  refused  pending  mandamus  to  allow  ap- 
peal; insufficient  bond  on  appeal.  AYheu  a  taxpayer  seeks  an 
appeal  from  a  judgment  for  the  sale  of  his  lands  for  delin- 
quent taxes,  but  the  appeal  is  refused  because  of  his  failure 
to  deposit  the  amount  of  the  judgment  as  required  by  statute, 
whereupon  he  files  his  petition  in  the  Supreme  Court  of  the 
state  for  a  mandamus  to  compel  the  inferior  court  to  allow 
the  appeal,  he  will  not,  pending  the  proceedings  in  mandamus, 
be  allowed  an  injunction  to  prevent  the  sale  of  his  lands 
for  the  unpaid  taxes.^^  Where,  however,  the  injunction  has 
been  properly  granted  in  other  respects,  it  will  not  be  re- 
versed because  the  bond  was  for  a  sum  much  less  than  the 
amount  of  the  tax  and  costs,  when  the  defendant  who  is  en- 
joined is  not  injured  by  reason  of  such  deficiency.^^ 

§  520.  Franchises.  A  court  of  equity  will  not,  ordinarily, 
interfere  by  injunction  with  the  collection  of  a  tax  upon  a 
franchise  because  it  has  been  illegally  imposed,  the  proper 
remedy  being  at  law.-^  Nor  will  the  collection  of  an  assess- 
ment for  paving  and  improving  streets  be  enjoined  on  the 
ground  that  such  paving  is  an  interference  with  the  rights  and 
franchises  of  a  plank-road  company  having  the  right  to  use 
the  streets,  the  injunction  being  sought,  not  by  the  company, 
but  by  an  adjacent  lot  owner.^^ 

22  Dean  v.  Borchsenius,  30  Wis.,  2r>  Drake  v.  Phillips,  40  111.,  388. 

237.  20  De  Witt  v.  Hays,  2  Cal.,  463. 

-'-  Indianapolis     r.     Gilmore,     30  -'^  Bagg  r.   Detroit,  5  Mich.,  336. 

Ind.,  414.  And   in   Maryland   it  is  held   that 

2'«  Andrews   v.  Rumsey,    75    111.,  unless  the  owners  of  a  majority  of 

598.  the  feet  fronting  on  a  street  to  be 


CHAr.  VIII.]  AGAINST  TAXES.  ,  495 

§  521.  Depreciation  of  property  no  ground  for  injunction. 
Great  depreciation  in  the  value  of  a  particular  property,  as 
a  watering  place,  resulting  from  the  condition  of  the  country 
during  a  civil  war,  affords  no  ground  for  relief  in  equity 
against  a  tax  assessed  against  such  property  upon  its  valua- 
tion before  the  war.  While  such  considerations  may  be 
properly  addressed  to  the  legislative  branch  of  the  govern- 
ment, they,  can  have  no  weight  with  the  judicial,  and  equity 
will  not  assume  jurisdiction  to  adjust  the  inequalities  and  mis- 
fortunes produced  by  civil  war.^^ 

§  522.  When  sale  of  personal  property  enjoined.  Where 
the  jurisdiction  of  equity  has  attached  for  the  purpose  of 
annulling  a  tax  certificate  improperly  issued  and  void,  the 
court  may  properly  proceed  to  enjoin  a  sale  of  personal  prop- 
erty to  satisfy  the  tax,  the  relief  being  allowed  upon  the  fa- 
miliar principle  that,  its  jurisdiction  having  once  attached, 
the  court  should  give  all  the  relief  to  which  the  party  may  be 
entitled,  although  some  portion  of  it  might  otherwise  have 
been  recoverable  in  an  action  at  law.^^ 

§  523.  Homestead  entry.  One  who  has  entered  land  under 
the  act  of  Congress  known  as  the  homestead  law,  and  who  has 
improved  the  same  and  resided  thereon,  can  not  enjoin  a  tax 
which  was  levied  upon  the  premises  before  he  obtained  his 
patent  from  the  United  States;  since  he  can  not  be  heard  to 
allege  his  own  failure  to  perfect  his  title  as  a  ground  upon 
which  to  base  his  claim  for  relief.^*' 

§  523  a.  Taxation  of  railway  property.  A  railway  company 
may  enjoin  the  sale  of  its  property  in  satisfaction  of  taxes 

paved  assent  in  writing  to  the  pav-  or,  11  Md.,  186;   Bouldin  v.  Mayor, 

ing,    the    proceedings    of    the    city  15  Md.,  18. 

authorities  are    void,    and    equity  ~» White  Sulphur  Springs  Co.  v. 

has  jurisdiction  on  the  application  Robinson,  3  West  Va.,  542. 

of  such  owners  as  have  not  assent-  29  Hamilton  v.  Fond  du  Lac,  25 

ed  to  restrain  the  sale  of  property  Wis.,  490.    See  also  Peck  v.  School 

for  such  paving.     Holland  v.  May-  District  No.  4,  21  Wis.,  517. 

30  Bellinger  i\  White,  5  Meb.,  399. 


496  INJUNCTIONS.  [chap.  VIII. 

which  are  unconstitutional  and  in  violation  of  its  chartered 
rights,  especially  when  the  questions  involved  as  to  the  differ- 
ent constituent  parts  of  the  railway,  and  the  liability  of  each, 
are  so  complicated  that  relief  may  better  be  had  in  equity  than 
at  law.^^  And  when  it  is  sought  to  collect  from  a  railway 
company  a  tax  upon  property  in  which  it  has  no  title  or 
ownership  and  which  it  uses  for  a  fixed  compensation  paid 
to  another  company,  the  owner  of  such  property,  relief  may 
be  had  by  injunction.-^'-  So  a  railway  company  may  enjoin 
the  collection  of  taxes  by  distraint  upon  its  rolling  stock, 
machinery  and  other  property,  when  it  has  tendered  in  pay- 
ment coupons  of  state  bonds  which,  by  the  laws  of  the  state, 
are  receivable  in  payment  of  taxes,  the  relief  being  granted  for 
the  prevention  of  irreparable  injury  and  because  of  the 
inadequacy  of  the  remedy  at  law.^^  But  the  collection  of  a 
tax  against  a  railway  company  can  not  be  enjoined  by  a 
foreign  company,  unless  the  latter  will  be  injuriously  affected 
as  to  its  own  property  by  the  collection  of  such  tax,  even 
though  it  is  in  possession  of  and  operating  the  line  of  the 
domestic  company  under  an  operating  contract.-'^ 

§  523  h.  Property  assessed  in  one  place  but  taxable  at 
another.  Where  proj^erty  has  been  assessed  for  taxation  in 
one  place,  but,  by  reason  either  of  the  domicile  of  its  owner, 
or  of  the  location  of  the  property  itself  or  of  statutory  enact- 
ment, it  is  properly  taxable  in  another  jurisdiction  and  has 
there  been  listed  for  taxation,  a  levy  based  upon  such  unau- 
thorized assessment  is  illegal  and  void  and  its  enforcement 
will  be  enjoined.  Thus,  where  property  is  taxable  in  one 
county  and  has  there  been  assessed  and  the  tax  paid,  relief 
will  be  allowed  against  the  enforcement  of  a  tax  levied  by 


31  Wright  V.  Southwestern  R.  33  Allen  v.  Baltimore  &  O.  R.  Co., 
Co.,  64  Ga.,  783.  114  U.  S.,  311. 

•''-  Irvin  ('.  New  Orleans,  St.  L.  :'■*  Archer  v.  Terre  Haute  &  I.  R. 
&  C.  R.  Co.,  94  111.,  105.  Co.,  102  111.,  493. 


CHAP.  VIII.] 


AGAINST  TAXES. 


497 


another  county/'^  So  where  the  plaintiff  liad  money  on  de- 
posit in  a  bank  in  a  state  other  than  that  of  his  domicile,  which 
was  taxable  as  a  chose  in  action  at  his  domicile,  an  injunc- 
tion was  granted  to  restrain  the  collection  of  a  tax  levied 
upon  such  deposit  by  the  authorities  of  the  state  where  the 
bank  is  situated.^*'  So  where  the  subject-matter  of  the 
tax  is  beyond  the  territorial  jurisdiction  of  the  taxing  author- 
ities, the  relief  will  be  granted/^'^  And  where  a  statute  gives 
a  corporation  the  option  of  returning  its  property  for  taxation 
either  in  the  county  where  located  or  in  the  county  where  its 
principal  place  of  business  is  situated  and  the  corporation  had 
returned  for  taxation  in  the  county  of  its  place  of  business  and 
had  paid  the  taxes  on  certain  property  located  in  another 
county,  an  injunction  will  lie  to  restrain  the'  collection  of  a 
tax  levied  upon  such  property  by  the  county  of  its  location.^^ 
So  a  tax  levied  by  the  authorities  of  a  town  against  one  who  is 
a  non-resident  thereof  will  be  restrained.^^ 


35  Court    V.   O'Connor,     65    Tex.,     Nebraska  City,  53  Neb.,  453,  73  N. 

W.,  952;  Vogt  v.  Ayer,  104  III.,  583. 

38Penick  v.  High  S.  Mfg.  Co., 
113  Ga.,  592,  38  S.  E.,  973. 

39  Crim  V.  Town  of  Philippl,  38 
West  Va.,  122,  18  S.  E.,  466. 


334. 

30Pyle  V.  Brenneman,  60  C.  C. 
A..  409,  122  Fed.,  787. 

37  Chicago,  B.  &  Q.  R.  Co.  v. 
Cass  County,  51  Neb.,  369,  70  N. 
W.,  955;  Chicago,  B.  &  Q.  R.  Co.  v. 


32 


498 


INJUNCTIONS. 


[chap.  VIII. 


II.     Cloud  Upon  Title. 

§  524.  Injunction  granted  to  prevent  cloud  upon  title. 

525.  Defects  must  be  dehors  the  record. 

526.  Illustrations  of   the  doctrine. 

527.  Fraudulent  conduct  of  ofiicers  or  boards. 

528.  The  same. 

529.  Sale  of  realty  enjoined  when  tax  should  be  satisfied  out  of  per- 

sonalty. 

§  524.  Injunction  granted  to  prevent  cloud  upon  title.  The 
most  generally  recognized  exception  to  the  rule  that  equity 
will  not  interfere  with  the  collection  of  the  revenue  because 
■of  defects  or  illegalities  in  the  proceedings,  is  in  cases  where 
the  proceedings  if  not  enjoined  would  result  in  clouding  the 
title  to  real  estate.  Thus,  where  the  defect  is  not  merely  a  for- 
mal one  but  works  a  substantial  injury  to  complainant's  rights, 
resulting  in  a  cloud  upon  his  title,  the  injunction  will  be 
granted.^     And  where  the  proceedings  sought  to  be  set  aside 


1  Mitchell  V.  Milwaukee,  18  Wis., 
92;  Crane  v.  Janesville,  20  Wis., 
305;  Siegel  v.  Supervisors,  26  Wis., 
70;  Milwaukee  Iron  Co.  v.  Town  of 
Hubbard,  29  Wis.,  51;  Johnson  v. 
City  of  Milwaukee,  40  Wis.,  315; 
Beaser  v.  City  of  Ashland,  89  Wis., 
28,  61  N.  W.,  77;  Dietz  v.  City  of 
Neenah,  91  Wis.,  422,  64  N.  W., 
299,  65  N.  W.,  500;  Hey  wood  v. 
Buffalo,  14  N.  Y.,  534;  Mutual  B. 
L.  Ins.  Co.  V.  Supervisors,  33  Barb., 
322;  Morris  C.  &  B.  Co.  v.  Jersey 
City,  1  Beas.,  227;  Marquette,  H. 
&  O.  R.  Co.  V.  Marquette,  35  Mich  . 
504;  Folkerts  r.  Power,  42  Mich., 
283,  3  N.  W.,  857;  Huntington  v. 
Central  P.  R.  Co.,  2  Sawy.,  503; 
Tilton  V.  Oregon  C.  M.  R.  Co.,  3 
Sawy.,  22;  Johnson  r.  Hahn,  4 
Neb.,  139,  overruling  Hallenbeck  ''. 


Hahn,  2  Neb.,  377;  South  Platte 
Land  Co.  v.  Buffalo  Co.,  7  Neb., 
253;  Touzalin  r.  City  of  Omaha, 
25  Neb.,  817,  41  N.  W.,  796;  Wiley 
V.  Flournoy,  30  Ark.,  609;  Greedup 
V.  Franklin  Co.,  30  Ark.,  101; 
Hare  v.  Carnall,  39  Ark.,  196;  Mo- 
bile &  Girard  R.  Co.  v.  Peebles,  47 
Ala.,  317;  Fowler  v.  City  of  St. 
Joseph,  37  Mo.,  228;  Leslie  v.  St. 
Louis,  47  Mo.,  474;  McPike  v.  Pen, 
51  Mo.,  63;  Goring  r.  McTaggart, 
9  Ind.,  200;  Bramwell  v.  Guheen. 
3  Idaho,  347,  29  Pac,  110;  Benn  r. 
Chehalis  County,  11  Wash.,  134,  39 
Pac,  365;  Tygart's  Valley  Bank  v. 
Town  of  Philippi,  38  West  Va., 
219,  18  S.  E.,  489;  Gregg  v.  San- 
ford,  12  C.  C.  A.,  525,  65  Fed.,  151; 
Taylor  v.  L.  &  N.  R.  Co.,  31  C.  C. 
A.,   537,    88   Fed.,    350;    California 


CHAP.  VIII.]  AGAINST  TAXES.  499 

are  valid  upon  their  face  and  extrinsic  facts  are  necessary  to 
be  proven  to  show  their  invalidity  or  illegality,  equity  will 
interfere  to  prevent  a  cloud  upon  title.-  So  where  two  lots 
have  been  assessed  together  as  the  property  of  a  person  own- 
ing but  one  of  them  and  a  gross  tax  has  been  imposed  upon 
the  two,  the  case  is  regarded  as  falling  within  the  exception, 
and  the  injunction  may  be  allowed.^  So,  too,  where  a  city 
charter  declares  a  tax  a  lien  upon  the  premises  on  which  it  is 
assessed,  the  tax,  if  illegal,  creates  such  a  cloud  upon  the  title 
as  to  warrant  an  injunction.  Nor,  in  such  case,  does  the 
fact  that  there  was  sufficient  personal  property  out  of  which 
the  tax  might  have  been  collected  vary  the  question  or 
avail  against  the  injunction.^  And  the  jurisdiction  thus  to 
interfere  for  the  prevention  of  a  cloud  upon  title  is  regarded 
as  pertaining  to  the  well  settled  powers  of  equity,  which 
will  interfere  to  prevent  such  a  cloud  as  tends  to  diminish 
the  value  of  the  property  or  cast  a  doubt  upon  the  title.'^ 
Thus,  the  sale  of  real  estate  for  the  collection  of  an  unpaid 
assessment  under  a  void  precept  may  be  restrained  for  the 
prevention  of  a  cloud  upon  the  title.''  So  the  owner  of  real 
estate  may  enjoin  the  issuing  of  a  tax  deed  to  defendant, 
who  claims  to  have  purchased  plaintiff's  lot  at  a  tax  sale, 
when  in  fact  the  purchase  did  not  cover  the  lot  in  question.'' 

&  0.   Land  Co.  v.  Gowen,  48  Fed.,  261;   S.  C,  57  Barb.,  383;  Tilton  v. 

771;    Southern  Ry.   Co.   v.   City  of  Oregon  C.  M.  R.  Co.,  3  Sawy.,  22; 

Asheville,    69    Fed.,    359;    Lytle   v.  Gregg  v.  Sanford,  12  C.  C.  A.,  525, 

Black,  107  Ga.,  384,  33  S.  E.,  414;  65  Fed.,  151. 

Vesta  Mills  v.  City  Council,  60  S.  3  Crane   v.   Janesville,     20    Wis.. 

C,  1,  38  S.  E.,  226.  And  see  Powell  305. 

(;.  Parkersburg,  28  West  Va.,  698.  *  Scofield    v.    Lansing,    17    Mich., 

As  to  the  right  of  a  mortgagee  to  437. 

such  relief  after  judgment  of  fore-  ^  Dean  v.  Madison,  9  Wis.,   402 ; 

closure,    see    Horn    r.     Garry,     49  Touzalin    v.    City    of     Omaha,     25 

Wis.,  464,  5  N.  W.,  897.  Neb.,  817,  41   N.  W.,  796. 

2  Dean   i\  Madison,  9  Wis.,  402;  e  Goring  v.  McTaggart,  92    Ind., 

Heywood  r.  Buffalo,  14  N.  Y.,  534;  200. 

Minnesota  L.  O.  Co.  v.  Palmer,  20  "  Koon     v.    Snodgrass,    18    West 

Minn.,  468;    Hanlon  v.  Supervisors  Va.,  320. 
of  Westchester,   8   Ab.    Pr.   N.    S., 


500  INJUNCTIOKS.  [chap.  VIII. 

§  525.  Defects  must  be  dehors  the  record.  It  is  to  be  ob- 
served, however,  that  where  the  relief  is  sought  to  prevent 
a  cloud  upon  title  it  will  only  be  granted  in  those  cases  where 
the  illegality  or  irregularity  complained  of  exists  dehors  the 
record.  And  where  the  objection  to  the  validity  of  the  tax  or 
assessment  appears  upon  the  face  of  the  tax  proceedings,  or 
upon  the  face  of  the  proceedings  by  which  alone  the  adverse 
party  can  claim  title  to  the  land  sold  for  the  unpaid  tax, 
equity  will  not  enjoin.^  Thus,  where  the  assessment  proceed- 
ings are  void  upon  their  face,  so  that  a  purchaser  at  a  tax 
sale  under  those  proceedings  would  not  obtain  a  prima  facie 
title,  the  remedy  at  law  is  perfect  and  an  injunction  will  be 
refused.^  And  where  a  tax  deed,  if  issued,  would  not  be 
prima  facie  evidence  of  title,  and  consequently  would  not 
cast  a  cloud  upon  complainant's  title,  relief  by  injunction 
will  be  denied.'**  But  where  by  statute  a  tax  deed  is  made 
prima  facie  evidence  of  the  regularity  of  all  the  proceedings 
incident  to  the  assessment  and  sale,  if  the  tax  has  been  im- 
posed contrary  to  law,  such  a  cloud  upon  the  title  will 
result  as  to  warrant  the  interference  of  equity.^'  Thus, 
where,  contrary  to  a  city  charter,  lots  belonging  to  different 
owners  have  been  assessed  together,  instead  of  separately, 
and  for  the  improvement  of  streets  not  adjacent  to  the  lots, 
the  sale  may  be  enjoined,  the  defects  not  appearing  on  the 
face  of  the  deed  which  is,  by  statute,  prima  facie  evidence 
of  title.^2    Mere  vagueness,  however,  or  inaccuracy  in  the  de- 

8  Van     Rensselaer     r.     Kidd,     4  » Van   Doren  v.  Mayor,  9   Paige. 

Barb.,  17;    Bouton  r.  Brooklyn,  15  388. 

Barb.,  393;    Harkness   r.   Board  of  i"  Minturn    v.    Smith,    3     Sawy.. 

Public    Works,    1    McArthur,    121;  142. 

Robinson    r.    Gaar,     6     Cal.,     273;  n  Palmer  >:  Rich.  12  Mich.,  414; 

Bucknall    v.     Story,    36     Cal.,     67;  Jenkins   r.  Rock  Co..  15   Wis.,  11; 

Byrne   v.   Drain,   127   Cal.,   663,  60  Bramwell   r.  Guheen,  3  Idaho,  347 

Pac,  433;    Van  Doren   r.  Mayor,  9  29  Pac,  110. 

Paige,   388;    Dean     /.    Madison,    9  i-' Jenkins  r.  Rock  Co.,  15  Wis., 

Wis.,  402.     And  see  Wiggin  r.  New  11. 
York,   9   Paige,  17;    Ctirtis   r.   East 
Saginaw,   35   Mich.,   508. 


CHAP.  VIII.]  AGAINST  TAXES.  501 

scription  of  land  to  be  sold  for  taxes  is  not  sufficient  to  war- 
rant an  injunction  against  the  sale  on  the  ground  of  prevent- 
ing a  cloud  upon  title,  since  if  the  tax  is  justly  due  the  cloud 
may  easily  be  avoided  by  pajmient.^^  And  where  the  de- 
scription in  a  tax  deed  is  so  defective  as  to  render  the  deed 
utterly  void,  a  court  of  equity  will  not  interfere.^ ^ 

§  526.  Illustrations  of  the  doctrine.  In  conformity  with 
the  general  doctrine  as  already  stated,  it  is  held  that  where 
the  record  of  the  tax  proceedings  is  prima  facie  valid,  and 
extrinsic  evidence  is  necessary  to  show  its  invalidity,  so  that, 
there  is  no  full  and  adequate  remedy  at  law  to  correct  an. 
abuse  of  the  taxing  power,  equity  may  properly  interfere  by- 
injunction.^  ^  So  where  the  invalidity  of  a  tax  sale  is  not  ap- 
parent upon  the  conveyance,  and  the  proofs  of  such  invalidity 
are  likely  to  be  lost  by  time,  proceedings  under  the  tax  sale 
may  be  enjoined  for  the  prevention  of  a  cloud  upon  the  own- 
er's title.^"  And  when  an  invalid  assessment  has  been  made 
upon  adjacent  lot  owners  in  a  city  for  the  improvement  of  a 
river,  equity  may  enjoin  the  municipal  authorities  from  exe- 
cuting to  the  contractor  who  has  performed  the  work  a  cer- 
tificate for  the  assessment,  since  such  a  certificate  would  be 
an  apparent  charge  or  incumbrance  upon  the  property  which 
would  constitute  a  cloud  upon  the  title.^^  So  when  proceed- 
ings taken  by  a  municipal  corporation  to  enforce  payment 
of  an  assessment  for  street  improvements  by  a  sale  of  prop- 
erty are  void,  an  injunction  against  the  sale  may  be  granted 
for  the  purpose  of  preventing  a  cloud  upon  the  title. ^^  So  an 
injunction  preventing  a   cloud  upon  title  will  be   granted  to 

13  Burlington  &  M.   R.  R.  Co.   v.  additional  ground  for  relief  by  in- 

Spearman,  12  Iowa,  112.  junction  in  such  a  case. 

>4Head  r.  James,  13  Wis.,  641.  i«  Mobile    &    Girard    R.    Co.    v. 

15  Greedup    p.  Franklin    Co.,    30  Peebles,   47  Ala.,   317. 

Ark.,  101.       And  it  is  held  in  the  i' Johnson  r.  City  of  Milwaukee, 

same  case  that  the  prevention  of  a  40  Wis.,  315. 

multiplicity  of  suits  at  law  affords  '*  Fowler   r.   City  of  St.  Joseph, 

37  Mo.,  228. 


502  INJUNCTIONS.  [chap.  VII f. 

restrain  the  enforcement  of  a  tax  levied  under  an  act  pro- 
viding for  the  taxation  of  the  capital  stock  of  corporations, 
upon  the  ground  that  the  plaintiff  is  a  joint  stock  company 
and  not  a  corporation,  since  extrinsic  evidence  would  be  neces- 
sary to  show  that  plaintiff  does  not  cpme  within  the  provisions 
of  the  act.i9 

§  527.  Fraudulent  conduct  of  officers  or  boards.  Upon  like 
principles  the  courts  have  interposed  by  injunction  against 
the  enforcement  of  taxes  dependent  upon  the  fraudulent  and 
arbitrary  action  of  boards  of  public  officers,  intrusted  by  law 
with  the  duty  of  equalizing  the  valuations  of  property  for 
purposes  of  taxation.-*^  Thus,  where  a  change  was  made  in 
the  valuation  of  complainant's  property  after  the  adjournment 
of  such  a  board,  and  without  authority  of  law,  thereby  largely 
increasing  such  valuation,  an  injunction  was  allowed  to  pre- 
vent the  extending  of  the  taxes  upon  the  tax  books,  since  the 
illegality  of  the  assessment  in  such  case  would  not  necessarily 
appear  upon  the  face  of  a  tax  deed,  and  the  deed  would 
therefore  constitute  a  cloud  upon  the  title  to  complainant's 
lands.21  So  when  the  proceedings  of  a  board  of  equalization 
in  increasing  the  assessment  of  complainant's  lands,  with- 
out authority  of  law  and  without  notice  or  opportunity  to  be 
heard,  are  regular  upon  their  face,  and  require  extrinsic 
evidence  to  establish  their  invalidity,  relief  by  injunction  is 
proper  for  the  prevention  of  a  cloud  upon  title.22 

§  528.  The  same.  The  jurisdiction  in  this  class  of  cases 
may  also  be  exercised  in  connection  with  such  circumstances 
of  fraud  as  entitle  complainant  to  equitable  relief,  and  for 
the  double  purpose  of  relief  against  fraud  and  of  preventing 
a  cloud  upon  title.  And  when  the  authorities  of  a  town  in 
levying  a  tax  have  omitted  to  assess  lands  to  the  owners  or 

10  Gregg  V.  Sanford,  12  C.  C.  A.,  21  Wiley   v.   Flournoy,    30    Ark., 

525,  6.5   Fed.,  1.51.  6U!). 

20  Wiley    V.    Flournoy,    30    Ark.,  ■:-'  South  Platte  Land  Co.  v.  Buf- 

609;  South  Platte  Land  Co.  v.  Buf-  falo  Co.,   7  Neb.,   253. 
falo  Co.,  7   Neb.,  253. 


CHAP.  VIII.]  AGAINST  TAXES.  503 

occupants  when  known,  and  have  intentionally  made  gross 
and  excessive  valuations,  and  have  arbitrarily  increased  the 
valuation  without  proof,  for  the  purpose  of  compelling  the 
owners  to  pay  more  than  their  just  proportion  of  the  taxes, 
relief  by  injunction  may  be  granted,  both  on  account  of  the 
fraud  shown  and  to  prevent  a  cloud  upon  complainant's  title.^-'^ 
And  under  such  circumstances  it  is  proper  to  interfere  while 
the  warrant  and  tax  roll  are  still  in  the  hands  of  the  town 
officers  and  before  the  lands  are  sold  for  taxes,  since  the  tax 
is  a  lien  upon  the  property  from  the  time  of  its  assessment; 
and  the  illegalities  complained  of  not  appearing  upon  the 
record  of  the  tax  proceedings,  but  existing  dehors,  the  pro- 
ceedings are  regarded  as  constituting  a  cloud  upon  title  of 
the  most  serious  character  and  demanding  the  immediate  inter- 
position of  a  court  of  equity.-^ 

§  529,  Sale  of  realty  enjoined  when  tax  should  be  satisfied 
out  of  personalty.  A  court  of  equity  may  also  enjoin  a  sale  of 
lauds  by  a  sheriff  in  satisfaction  of  a  tax,  for  the  prevention 
of  a  cloud  upon  the  title,  when  the  sheriff  is  authorized  by 
law  to  levy  only  upon  goods  and  chattels  and  not  upon  real 
estate.-^  And  upon  a  statute  requiring  personalty  to  be  first 
proceeded  against  in  the  enforcement  of  taxes  before  realty 
can  be  taken,  a  sale  of  complainant's  real  estate  in  satis- 
faction of  unpaid  taxes  may  be  restrained  when  he  has  per- 
sonal property  out  of  which  the  tax  may  be  satisfied,  the 
foundation  of  relief  in  such  case  being  the  necessity  of  pre- 
venting a  sale  whose  only  result  would  be  to  cast  a  cloud 
upon  complainant's  title.^^  So  the  execution  of  a  tax  deed 
may  be  enjoined  where  the  sale  of  the  premises  was  void 
because  plaintiff  had  sufficient  personal  property  out  of  which 
the  taxes  in  question  might  have  been  satisfied.^''' 

23  Milwaukee    Iron    Co.   v.   Town  =6  Johnson  v.  Hahn,  4  Neb.,  13S, 

of   Hubbard,     29    Wis.,    51.       See  overruling  Hallenbeck  v.   Hahn,   2 

Tainter  v.  Lucas,  29  Wis.,  375.  Neb.,  377.     And  see  Abbott  v.  Ed- 

-4  Milwaukee   Iron   Co.    v.   Town  gerton,  53  Ind.,  196. 

of  Hubbard,  29  Wis.,  51.  27  Morrison    v.     Bank     of     Com- 

25  McPike  V.  Pen,  51  Mo.,  63.  merce,  81  Ind.,  335. 


504  INJUNCTIONS.  [chap.  Vlll. 


III.     Property  Exempt  from  Taxation. 

§  530.  Injunction    granted    when    property    exempt. 

531.  The  doctrine  applied  to  railway  property. 

532.  Lands  exempted  by  United  States. 

533.  Remission  of  tax  by  legislature. 

534.  Transfer  of  taxing  power;    omission  to  tax  railway  property. 

535.  Entire  tax  not  enjoined  because  part  exempt;  property  in  re- 

ceiver's hands. 

§  530.  Injunction  granted  when  property  exempt.  An  im- 
portant exception  to  the  general  doctrine  of  non-interference 
by  injunction  against  the  collection  of  the  revenue  because  of 
illegality  in  the  tax  is  recognized  in  that  class  of  cases  where 
the  relief  is  sought  against  a  tax  assessed  upon  property  which 
has  been  exempted  by  law  from  taxation.  Indeed,  the  excep- 
tion has  been  so  uniformly  recognized  as  to  become  of  itself  a 
governing  rule  in  the  class  of  cases  now  under  consideration. 
And  it  may  be  laid  down  as  the  established  doctrine  of  the 
courts  that  the  attempted  enforcement  of  a  tax  upon  prop- 
erty which  has  been  exempted  by  proper  legislative  authority 
from  the  burdens  of  taxation,  constitutes  a  grievance  of  so 
irreparable  a  nature  as  to  merit  preventive  relief  by  injunc- 
tion.^    And  where  an  act  of  legislature,  held  by  the  court  to 

1  Illinois  Central  R.  Co.  y.  Coun-  Wal.,  603;  Gonzales  v.  Sullivan,  16 
ty  of  McLean,  17  111.,  291;  Illinois  Fla.,  791;  County  of  Anderson  r. 
Central  R.  Co.  v.  Hodges,  113  111.,  Kennedy,  58  Tex.,  616;  Interna- 
323;  Morris  Canal  &  Banking  Co.  tional  &  G.  N.  R.  Co.  v.  Smith 
/;.  Jersey  City,  1  Beas.,  227;  Oliver  County,  65  Tex.,  21;  Davis  v.  Bur- 
i:  Memphis  &  Little  Rock  R.  Co.,  nett,  77  Tex.,  3,  13  S.  W.,  613; 
30  Ark.,  128;  Marquette,  H.  &  0.  Mechanics  Bank  v.  City  of  Kansas, 
R.  Co.  r.  Marquette,  35  Mich.,  504;  73  Mo.,  555;  North  St.  Louis  Gym- 
Mobile  &  Girard  R.  Co.  v.  Peebles,  nastic  Society  v.  Hudson,  85  Mo., 
47  Ala.,  317;  Mobile  &  O.  R.  Co.  v  32;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Moseley,  52  Miss.,  127;  Missouri  Neary,  5  Del.  Ch.,  600;  St.  Mary's 
River,  F.  S.  &  G.  R.  Co.  r.  Morris,  Gas  Co.  v.  Elk  County,  168  Pa.  St.. 
13  Kan.,  302;  Railway  Co.  r.  Mc-  401,  31  Atl.,  1077;  Vesta  Mills  r. 
Shane,  22  Wal.,  444,  affirming  City  Council,  60  S.  C,  1,  38  S.  E.. 
S.  C,  3  Dill..  303,  and  overruling  226;  City  of  Staunton  r.  Mary 
in  part  Railway  Co.  v.  Prcscott,  16  Baldwin  Seminary,  99  Va.,  653,  39 


CHAP.  Vni.J  AGAINST  TAXES.  505 

be  constitutional,  exempts  certain  property  from  taxation,  an 
injunction  will  be  allowed  against  the  enforcement  of  a  tax 
upon  such  property.-  So  an  injunction  may  be  granted 
against  the  assessment  of  the  property  of  a  corporation 
where,  under  the  terms  of  its  charter  as  construed  by  the 
court  of  last  resort  of  the  state,  the  property  is  exempt  from 
taxation.'^  But  an  exemption  from  taxation  does  not  relieve 
the  property  of  the  burden  of  special  assessments  and  equity 
will  therefore  not  interfere  with  such  assessments  upon  the 
ground  that  the  property  is  exempt  from  taxation.^  And  to 
entitle  the  taxpayer  to  relief  against  the  collection  of  a  per- 
sonal tax  upon  the  ground  that  the  personalty  is  exempt,  it 
must  appear  that  such  property  is  included  in  his  assessment. 
Where,  therefore,  the  plaintiff  seeks  relief  against  a  tax  al- 
leged to  be  upon  personal  property  belonging  to  him  but  which 
is  exempt,  and  it  appears  that  he  has  taxable  personalty  which 
exceeds  in  value  the  amount  of  his  assessment,  the  relief  will 
be  denied.^ 

§  531.  The  doctrine  applied  to  railway  propert;y.  The  doc- 
trine as  above  stated  is  frequently  applied  in  cases  of  rail- 
way property  which  has  been  exempted  from  taxation.  Thus, 
where  a  statute  exempts  from  taxation  the  lands  of  a  railway 
company  which  are  actually  occupied  by  the  company  in  the 
exercise  of  its  franchise,  the  collection  of  a  tax  upon  such 
lands  may  properly  be   enjoined.^     And   while,   as   we  have 

S.   E.,   596;    Phelan   r.     Smith,    22  *  Yates  r.  City  of  Milwaukee,  92 

Wash.,  397,  61  Pac,  31;   Louisville  Wis.,  352,  66  N.  W.,  248. 

&  N.  R.  Co.  i:  Gaines,  3  Fed.,  266.  ■•  Siegfried  r.  Raymond,  190  111., 

And  see  Union  &  Planters  Bank  r.  424,  60  N.  E.,  868. 

City  of  Memphis,  49  C.  C.  A.,  455,  «  Marquette,    H.   &   0.    R.    Co.    v. 

Ill  Fed.,  561.  Marquette,   35   Mich.,  504;    Illinois 

~  Illinois  Central  R.  Co.  v.  Coun-  Central    R.    Co.    v.    County   of    Mc- 

ty  of  McLean,  17  111.,  291;    Illinois  Lean,  17  111.,  291;   Illinois  Central 

Central  R.  Co.  v.  Hodges,  113  111.,  R.  Co.  r.  Hodges,  113  111.,  323.  See 

323.  also  Tomlinson  i\  Branch,  15  Wal., 

•''  Morris  Canal  &  Banking  Co.  v.  460.     And  see  this  case  as  to  the 

Jersey  City,  1  Beas.,  227.  effect  of  a  consolidation   with   an- 


506-  INJUNCTIONS.  [chap.  Vlil. 

already  seen,  courts  of  equity  are  usually  averse  to  interfer- 
ing with  the  enforcement  of  taxes  merely  upon  the  ground  of 
their  illegality,  yet  where  the  threatened  injury  is  of  an  irrep- 
arable and  uncertain  nature,  so  that  damages  at  law  can  not 
give  adequate  redress,  the  aid  of  equity  may  be  properly 
invoked.  Thus,  where  the  property  of  a  railway  company  is 
exempted  by  law  from  taxation  for  a  given  period  of  time, 
a  sale  of  such  property  for  taxes  imposed  in  violation  of  the 
law  may  be  enjoined.  And  the  relief  is  allowed  in  such  case 
upon  the  ground  of  irreparable  injury,  since  a  sale  of  the 
railroad  would  necessarily  interfere  with  or  suspend  its  busi- 
ness, and  the  damages  resulting  could  not  by  reason  of  their 
uncertain  character  be  ascertained.'''  So  where  a  railroad  is  by 
its  charter  exempted  from  taxation  until  its  income  shall  reach 
a  certain  percentage  upon  the  amount  of  its  cost,  it  would 
seem  to  be  proper  to  enjoin  the  collection  of  a  tax  upon  the 
road  until  its  income  has  reached  the  given  standard,  the 
relief  being  granted  in  such  case  to  prevent  irreparable  injury, 
a  multiplicity  of  suits  and  a  cloud  upon  title. ^ 

§  532.  Lands  exempted  by  United  States.  It  is  also  an 
established  rule  that  where  lands  have  been  set  apart  by  the 
general  government  for  the  use  of  Indian  tribes,  and  have 
been  exempted  by  law  from  taxation  until  they  shall  be  sold 
and  patented  to  purchasers,  the  enforcement  of  a  tax  upon 
such  lands  while  thus  exempt  from  taxation  may  be  enjoined.^ 
So  where  lands  have  been  granted  by  the  United  States  in  aid 
of  the  construction  of  a  railway,  but  the  legal  title  has  not 
yet  passed  from  the  government,  and  the  lands  are  not,  there- 
fore, subject  to  taxation  by  the  state  in  which  they  are  lo- 
cated, the  United  States  still  having  an  interest  in  them  which 
can  not  be. divested  by  the  exercise  of  the  taxing  power  on  the 

other  company  upon  the   right  to  «  Mobile  &  0.  R.  Co.  v.  Moseley, 

relief  in  such  cases.  52  Miss.,  127. 

7  Oliver   r.   Memphis  &  L.  R.  R.  '•'  Missouri  River,  F.   S.  &  G.   R. 

Co.,   30   Arlt..   128.  Co.  v.  Morris,  13  Kan.,  302. 


CHAP.  VIII. J  AGAINST  TAXES.  507 

part  of  the  state,  a  court  of  equity  may  enjoin  the  collection 
of  taxes  upon  such  lancls.^*^  But  an  injunction  will  not  be 
allowed  to  prevent  the  enforcement  of  a  tax  upon  such  lands 
when  the  title  has  passed  from  the  government  to  the  railway 
company,  and  when  the  United  States  has  no  longer  any  inter- 
est in  the  lands  which  would  prevent  their  taxation  by  the 
state.^i 

§533.  Remission  of  tax  by  legislature.  The  absolute  re- 
mission of  a  particular  tax  may  also  afford  ground  for  en- 
joining an  attempt  at  its  enforcement,  it  being  regarded  as  a 
competent  exercise  of  legislative  power  over  the  subject  of 
taxation  to  remit  a  tax  as  an  entirety.  And  where  an  act  of 
legislature  has  remitted  a  particular  county  tax  upon  the 
property  of  a  railway  company,  the  act  not  being  in  conflict 
with  the  constitution  of  the  state,  a  court  of  equity  may  set 
aside  a  sale  of  the  property  of  the  railway  for  the  tax  so  re- 
mitted, and  may  enjoin  a  purchaser  at  such  sale  from  asserting 
any  title  thereunder.^- 

§534.  Transfer  of  taxing-  power;  omission  to  tax  railway 
property.  But  an  act  of  legislature  whose  terms  authorize  a 
transfer  or  sale  of  the  taxing  power  of  the  state  with  ref- 
erence to  certain  corporations,  releasing  them  on  certain  con- 
ditions from  further  taxation,  being  held  unconstitutional, 
its  enforcement  may  be  enjoined.^ ^  And  in  such  case  any  tax- 
payer or  loan  creditor  of  the  state  has  such  an  interest  in  the 
matter  as  to  make  him  a  proper  party  to  the  bill.^'*  But, 
although  a  statute  exempting  railway  corporations  from  their 
due  proportion  of  taxation  be  unconstitutional,  the  omis- 
sion in  pursuance  of  the  statute  to  tax  the  property  of  such 
railways  in  the  same  ratio  that  individual  citizens  are  taxed 

10  Railway  Co.  v.  McShane,  22  12  Mobile  &  Girard  R.  Co.  v.  Pee- 
Wal..  444,  affirming  S.  C,  3  Dill.,     bles,  47  Ala.,  317. 

303,  and   overruling  in   part  Rail-         is  Mott   v.   Pennsylvania   R.   Co., 

way  Co.  V.  Prescott,  16  Wal.,  603.  30  Pa.   St.,  9. 

11  Hunnewell  v.  Cass  County,  22         1*  Id. 
Wal.,  464. 


508  INJUNCTIONS.  [chap.  VIII. 

will  not  render  void  a  tax  levied  upon  the  property  of  others 
subject  to  taxation.  Nor  will  such  omission  authorize  one 
who  has  been  properly  assessed  to  enjoin  the  collection  of  the 
tax  against  his  own  property.'"^ 

§  535.  Entire  tax  not  enjoined  because  part  exempt;  prop- 
erty in  receiver's  hands.  While,  as  we  have  already  seen, 
equity  may  properly  enjoin  the  collection  of  taxes  upon  prop- 
erty which  is  legally  exempt  from  taxation,  it  will  not  restrain 
the  collection  of  an  entire  tax  because  in  determining  the 
valuation  of  complainant's  taxable  property  in  the  aggregate 
the  exempted  property  may  have  been  included  as  a  factor.^*' 
And  where,  under  the  constitution  of  the  state,  property  used 
exclusively  for  school  purposes  is  exempt  from  taxation,  an 
injunction  will  not  lie  to  restrain  a  sale  for  unpaid  taxes  when 
the  property  is  used  partly  for  school  purposes  and  in  part  as 
a  private  residence.^ '^  Nor  is  the  fact  that  property  has  been 
placed  in  the  hands  of  a  receiver  regarded  as  exempting  it 
from  the  taxing  power  of  the  government.  And  where,  in 
such  case,  the  warrants  in  the  hands  of  the  tax  collectors  are 
regular  upon  their  face  and  the  collectors  are  acting  under 
them  in  good  faith  in  the  discharge  of  their  duty,  a  court  of 
equity  may  properly  refuse  to  enjoin  the  collection  of  the 
tax.18 

15  Muscatine  v.  Mississippi  &  M.         ^^  Red  v.  Johnson,  53  Tex.,  284. 
R.  Co.,  1  Dillon,  536.  is  Stevens  v.  New  York  &  0.  M. 

16  Huck  V.  Chicago  &  A.  R.  Co ,  R.  Co.,  13  Blatch.,  104. 
86  111.,  352. 


CHAP.  Vlll.J  AGAINST  TAXES.  509 


IV.  Municipal  Taxation. 

§  536.     Rule  of  non-interference  relaxed  as  tx)  municipal  corporatioos ; 
illustrations. 

537.  Violation  of  rule  of  uniformity;  tax  upon  traders. 

538.  Invalidity  dehors   the  record;    omission  of  property;    property 

improperly  included  or  exempted. 

539.  Omission   of   estimate  of   expense. 

540.  Dispute  as   to  municipality   to  which  property  belongs. 

541.  Misappropriation  of  corporate  funds. 

542.  The  same. 

543.  Injunction  refused  where  remedy  at  law. 

544.  Equity  will  not  review  proceedings  of  municipal  officers. 

545.  Mere  illegality  not  sufficient  ground  for  injunction. 

546.  Municipal    tax    against   personal    property    not    ordinarily   en- 

joined. 

547.  Enlargement  of  municipal  limits. 

548.  Excessive    taxation    of    lots;    real    estate   excluded    from    city 

limits. 

549.  Acquiescence  of  property   owner  as  an  estoppel. 

550.  Limitations  upon  the  doctrine  of  estoppel. 

551.  Amount  due  must  be  paid  or  tendered;  exceptions. 

.   552.  "When  injunction  allowed  as  an  incident  to  other  relief. 

553.  Tax  upon  business  in  city;   license  tax  upon  occupations. 

554.  Assessment  for   improving  streets,  when  enjoined. 

555.  Repeal   of  ordinance;    premature   application;    municipal   elec- 

tion to  vote  tax. 

556.  Assessments    for    pavements    and    improvements;     assessment 

based  on  frontage  rule. 

557.  Municipal  bonds  illegally  issued. 

558.  Debt  due  from  city  can  not  be  set  off  against  tax. 

559.  Effect  of  injunction  against  paying  interest  on  municipal  bonds. 

560.  Advertising  for  bids. 

560a.  Fraud  as  ground  for  relief. 

5606.  Irregularities    in    organization    of    municipal    corporation    no 
ground   for  injunction. 

§  536.  Rule  of  non-interference  relaxed  as  to  municipal  corpo- 
rations; illustrations.  It  will  be  found  upon  examination  that 
courts  of  equity  have  been  inclined  in  cases  of  assessments 
by  municipal  corporations  to  relax  somewhat  the  stringency 
of  the  rule  of  non-interference  as  applied  to  the  collection  of 


510  INJUNCTIONS.  [chap.  VIII. 

state  taxes,  and  relief  by  injunction  has  been  more  freely 
granted  against  the  collection  of  municipal  taxes  than  in 
cases  affecting  the  collection  of  revenues  by  the  state.^  And 
while  it  is  difficult  to  perceive  any  sufficient  reason  for  such 
distinction,  the  distinction  itself  remains.  Thus,  it  is  held 
that  the  general  rule  denying  relief  in  equity  against  the  col- 
lection of  an  illegal  tax,  in  the  absence  of  special  circum- 
stances bringing  the  case  within  some  recognized  head  of 
equity  jurisdiction,  applies  only  to  taxes  levied  by  the  sover- 
eign, and  not  to  taxes  or  assessments  imposed  by  inferior 
bodies,  such  as  municipal  corporations.^  And  a  sale  of  real 
estate  in  satisfaction  of  a  municipal  tax  imposed  without  au- 
thority has  been  enjoined  upon  the  ground  of  preventing  a 
cloud  upon  title.^  The  relief  has  also  been  granted,  even 
though  no  question  as  to  cloud  upon  title  was  raised.*  So  the 
collection  of  a  municipal  tax  such  as  a  special  assessment  or  a 
poll  tax  will  be  enjoined  where  the  municipality  was  wholly 
without  power  under  its  charter  to  levy  the  tax  in  question.^ 
So  a  municipal  tax  levied  for  the  support  of  public  schools, 
which  was  illegal  because  the  question  of  such  taxation  was 
not  submitted  to  the  taxpayers  and  voters  of  the  city,  has 
been   enjoined.^     And   although   a  tax  be   authorized   by  act 

1  See   opinion   of   Miller,    J.,    in  even  though  done  under  authority 
Parmley  v.  Railroad  Companies,  3  of  the  laws  of  the  United  States. 
Dill.,  25.  :<  Smith  r.  Longe,  20  Fla.,  697. 

2  Alexandria  C.  R.  &  B.  Co.  v.  4  Foster  r.  Kenosha,  12  Wis.,  616; 
District  of  Columbia,  1  Mackey,  Toledo  v.  Lafayette,  22  Ind.,  262. 
217.  And  in  the  same  case  it  is  s  Lee  v.  Town  of  Mellette,  15  S. 
held  that  §  3224  of  the  Revised  Dak.,  586,  90  N.  W.,  855;  Morris 
Statutes  of  the  United  States,  r.  Cummings,  91  Tex.,  618,  45  S. 
which  provides  that    "No  suit    for  W.,  383. 

the  purpose  of  restraining  the  as-  «  City  of  Fort  Worth  v.  Davis,  57 
sessment  or  collection  of  any  tax  Tex.,  225.  As  to  the  right  to  en- 
shall  be  maintained  in  any  court,"  join  the  collection  of  a  tax  voted 
applies  only  to  cases  arising  under  by  a  school  district  for  the  erec- 
the  internal  revenue  laws  of  the  tion  of  a  school-house,  see  Casey 
United  States,  and  not  to  assess-  r.  Independent  District,  64  Iowa, 
znentB  imposed  by  a  municipality,  G59,  21    N.   W.,   122. 


CHAP.  VIII.]  AGAINST  TAXES.  511 

of  legislature,  yet  where  the  municipal  authorities  have  dis- 
regarded and  failed  to  comply  with  all  the  requirements  of  the 
statute,  equity  will  enjoin  a  sale  of  land  for  such  tax  upon  the 
ground  that  the  proceedings  are  coram  non  judice  and  void.'^ 
So  an  injunction  is  regarded  as  the  appropriate  remedy  to 
prevent  the  enforcement  of  a  municipal  tax  in  excess  of  the 
limit  prescribed  by  the  constitution  of  the  state.^  And  where 
a  county  officer  is  authorized  by  law  to  levy,  in  addition  to 
the  regular  taxes,  a  special  or  extraordinary  tax,  with  the 
consent  of  two-thirds  of  the  grand  jury  of  the  county,  for 
certain  purposes  enumerated  by  law,  such  as  the  discharge 
of  judgments  against  the  county,  he  may  be  enjoined  from 
making  such  levy  without  the  consent  of  the  requisite  num- 
ber of  the  grand  jury,  and  when  it  is  not  clearly  shown 
that  the  tax  is  necessary  for  the  special  purposes  prescribed 
by  law.^  So  the  owner  of  lots  in  a  city,  whose  property 
is  assessed  for  street  improvements,  may  maintain  an  action 
against  the  city  for  an  injunction  when  his  assessment  has 
been  increased  by  the  unauthorized  omission  by  the  assess- 
ors of  other  lands  from  the  assessment.^  *^  In  such  case,  the 
assessors  not  having  complied  with  the  law  and  the  assess- 
ment being  confirmed  by  the  common  council  of  the  city 
without  legal  right,  there  is  an  excess  of  authority  which  is 
absolutely  fatal  to  the  assessment,  the  case  being  properly 
distinguishable  from  that  of  a  mere  irregularity  in  the  ex- 
ercise of  an  unquestioned  power.^^     So  upon  a  bill  by  a  tax- 

T  Mayor  v.   Porter,  18  Md.,  284;  569,  8   S.  W.,  718.     See  also   City 

Holland    v.     Mayor,    11    Md.,    186;  of  Springfield  v.  Edwards,  84   111., 

Bouldin    v.    Mayor,    15    Md.,    18;  626. 

Mayor    v.    Grand     Lodge,    44    Md.,  9  Couper  v.  Rowe,   42   Ga.,  229. 

436;    Morris   v.   Merrell,    44     Neb.,  lo  Hassan  v.   City   of  Rochester, 

423,  62  N.  W.,  865.     See  also  But-  65   N.    Y.,   516,   reversing   S.    C,    6 

ler  V.  City  of  Detroit,  43  Mich.,  552,  Lans.,  185;  Same  v.  Same,  67  N.  Y., 

5  N.  W.,  1078.  528. 

8  Overall  v.  Ruenzi,  67  Mo.,  203;  ^i  Hassan    v.    City  of   Rochester, 

Howell  V.   City  of   Peoria,  90    111.,  67  N.  Y.,  528. 
104;    Arnold   v.    Hawkins,   95    Mo., 


512  INJUNCTIONS.  [chap.  VIII. 

payer  to  enjoin  a  municipal  corporation  from  incurring  any 
indebtedness  in  excess  of  the  maximum  fixed  by  the  consti- 
tution as  the  limit  of  municipal  indebtedness,  it  is  proper,  in 
connection  with  such  injunction,  to  enjoin  the  levying  of  taxes 
in  payment  of  the  indebtedness  beyond  the  constitutional 
limit.^-  And  where  the  municipal  authorities  have  levied  a 
tax  to  an  amount  which  exceeds  the  limit  prescribed  by  law, 
the  collection  of  such  a  tax  will  be  enjoined.  Thus,  where 
a  statute  provided  that  the  county  board  should  make  a  levy 
for  each  fund,  but  imposed  a  limitation  upon  the  levy,  which 
should  consist  of  the  entire  amount  of  the  salaries  for  the 
year  with  an  addition  of  twenty-five  per  cent,  for  delinquents, 
a  tax  levied  in  excess  of  such  limitation  is  illegal  and  its  en- 
forcement will  be  enjoined.^^  So  where  town  authorities,  in 
levying  taxes,  are  confined  by  law  to  the  valuation  placed  upon 
property  for  state  and  county  taxes,  but  in  violation  of  such 
provision  are  assessing  it  at  a  higher  rate,  equity  will  enjoin 
the  collection  of  that  portion  of  the  tax  which  is  founded  upon 
such  illegal  excess.^  ^ 

§  537.  Violation  of  rule  of  uniformity ;  tax  upon  traders. 
The  violation  by  municipal  officers  in  levying  a  tax  of  the 
rule  of  uniformity  in  taxation  as  prescribed  by  the  constitu- 
tion of  the  state  affords  sufficient  ground  for  enjoining  them 
from  proceeding  with  the  collection  of  the  tax.^^  Thus,  where 
the  authorities  of  a  city,  in  imposing  a  municipal  tax  upon 

12  City     of     Springfield     v.     Ed-  Valley  R.   Co.   v.    Supervisors,    78 

wards,   84   111.,   626;    Culbertson  «'.  Va.,  269.       But  in  Young  v.  Town 

City  of  Fulton,  127   111.,  30,  18  N.  of  Henderson,  76  N.  C,  420,  it  is 

E.,  781.  held  that  where  the  tax  is  levied 

i-'  Wiggins  V.  A.,  T.  &  S.   F.  R.  for  the    payment   of    a    judgment 

Co.,  9  Okla.,  118,   59   Pac,   248.  rendered  against  the  municipality, 

!■»  Tygart's  Valley  Bank  v.  Town  the  court  will  not,  in  such  collat- 

of    Philippi,    38  West  Va.,   219,   18  eral   proceeding,  permit  the  judg- 

S.  E.,  489.  ment     to     be     questioned     or     Im- 

'•'•  Young  V.  Town  of  Henderson,  peached,  in  the  absence  of  any 
76  N.  C,  420;  Gould  /■.  Mayor  of  allegations  of  fraud,  but  will  re- 
Atlanta,  55  Ga.,  678;    Shenandoah  gard  it  as  res  judicata. 


CHAP.  VIII.  J  AGAINST  TAXES.  513 

traders  exercising  their  vocation  within  the  city,  unjustly 
discriminate  between  resident  and  non-resident  traders,  in  vio- 
lation of  the  constitutional  rule  of  uniformity,  an  injunction 
is  the  appropriate  remedy.^^^  And  the  great  hardship  and 
oppression  of  an  illegal  municipal  ordinance  imposing  such  a 
tax,  coupled  with  the  severity  of  its  penal  provisions  and  the 
forfeiture  of  goods  imposed  for  non-payment  of  the  tax  are 
regarded  as  affording  sufficient  grounds  for  relief  in  equity, 
notwithstanding  a  remedy  at  law.^'^  "Where,  however,  it  is 
sought  to  restrain  the  collection  of  municipal  taxes  upon  real 
property,  which  are  regularly  assessed  under  a  general  ordi- 
nance for  raising  revenue  to  meet  the  current  expenses  of  a 
city,  the  sole  ground  upon  which  the  relief  is  sought  being  a 
violation  of  the  rule  of  uniformity,  an  appellate  court  will  not 
revise  the  action  of  the  court  below  in  refusing  a  preliminary 
injunction,  when  the  questions  involved  are  of  grave  impor- 
tance, embracing  the  entire  system  of  municipal  finance  of  the 
state.^^ 

§538.  Invalidity  dehors  the  record;  omission  of  property; 
property  improperly  included  or  exempted.  When  an  invalid 
municipal  tax  or  assessment  is  regular  upon  its  face,  the 
invalidity  appearing  only  by  evidence  dehors  the  record,  its 
enforcement  may  be  prevented  by  injunction.^ ^  And  when 
municipal  assessors  in  making  an  assessment  have  acted  upon 
an  erroneous  principle  and  have  omitted  property  benefited 
by  the  improvement,  in  disregard  of  the  provisions  of  a  charter 
requiring  the  assessment  to  be  made  upon  property  benefited 
by  the  improvement  in  proportion  to  the  advantages  derived 
therefrom,  relief  by  injunction  may  properly  be  invoked.-"^ 
So  if,  in  disregard  of  such  requirements  of  the  charter,  they 

16  Gould  IK  Mayor  of  Atlanta,  55         i9  Ogden  City  v.  Armstrong,  168 

Ga.,  678.  U.  S.,  224,  18  Sup.  Ct.  Rep.,  98. 
IT  Id.  20  Clark   v.   Village   of   Dunkirk, 

18  Wayne  v.  Mayor  of  Savannah,  12  Hun,   181;   Kennedy  v.  City  of 

56  Ga.,  448.  Troy,   14  Hun,  308. 
33 


51-1  INJUNCTIONS.  [chap.  VIII. 

have  assessed  property  which  can  not  possibly  be  benefited  by 
the  improvement,  equity  may  relieve  by  injunction. -^  And 
where  the  authorities  of  a  city  have  exempted  certain  property 
from  taxation,  thereby  increasing  the  burden  upon  other 
property,  the  exemption  being  illegal,  an  injunction  will  be 
granted  to  prevent  the  sale  for  taxes  of  the  lands  so  as- 
sessed, upon  the  ground  that  the  omission  was  intentional 
and  not  the  result  of  accident.--  So  when  an  assessment  of 
property  for  municipal  taxation  has  been  corrected  in  the 
manner  and  by  the  tribunal  fixed  by  law  for  such  purpose, 
but  the  municipal  authorities  proceed  to  levy  the  tax  upon 
the  original  assessment  which  has  been  invalidated,  the  ap- 
propriate remedy  is  by  injunction.-^ 

§  539.  Omission  of  estimate  of  expense.  Where  the  charter 
of  a  city  authorizes  municipal  improvements,  such  as  the 
making  of  sewers  or  opening  of  streets,  to  be  paid  by  taxes 
imposed  upon  property  benefited  thereby,  but  imposes  cer- 
tain conditions  upon  the  city  as  necessary  to  give  it  jurisdic- 
tion to  make  the  assessment,  a  strict  compliance  with  such 
conditions  is  usually  required  to  sustain  the  validity  of  the 
assessment.  And  where  the  charter  requires,  as  such  a  condi- 
tion, that  an  estimate  be  made  of  the  whole  expense  of  the 
work  and  of  the  amount  to  be  charged  against  each  lot,  which 
estimate  shall  be  filed  in  the  ofRce  of  the  city  clerk  for  the  in- 
spection of  all  parties  in  interest,  the  making  and  filing  of  such 
estimate  by  the  city  authorities  are  jurisdictional  in  their 
nature  and  their  omission  renders  the  proceeding  entirely  void. 
A  court  of  equity  may,  therefore,  in  such  a  case,  enjoin  a  sale 
of  the  lots  for  such  assessment,  or,  if  the  sale  has  already  been 
made,  may  enjoin  the  issuing  of  a  tax  deed  upon  the  certificate 
of  sale.2^ 

21  T.ongley  v.  City  of  Hudson,  4  -■''City  of  Richmond  v.  Cren- 
Thomp.   &  C,  353.  shaw,  76  Va.,  936. 

22  Weeks  v.  Milwaukee,  10  Wis.,  ^4  Massing  r.  Ames,  37  Wis.,  645; 
242;  Hersey  v.  Supervisors,  16  Pound  v.  Supervisors  of  Chippewa 
Wis.,  185.  Co.,  43  Wis.,  63. 


CHAP.  VIII.]  AGAINST  TAXES.  515 

§  540.  Dispute  as  to  municipality  to  which  property  be- 
longs. R-elief  by  injunction  is  also  granted  for  the  purpose 
of  preventing  the  enforcement  of  a  tax  by  a  municipality 
other  than  that  to  which  the  property  assessed  rightfully 
belongs. 2^  For  example,  when  the  same  property  is  taxed 
in  two  different  counties,  each  claiming  the  right  to  levy  a 
tax  thereon,  there  being  a  dispute  between  the  counties  as 
to  their  territorial  boundaries,  the  enforcement  of  the  tax 
by  the  county  to  which  the  property  does  not  pertain  may 
be  enjoined.-*^  So  the  owner  of  land  situated  in  two  adja- 
cent towns,  who  has  been  assessed  by  the  municipal  authori- 
ties of  both,  may  have  relief  by  a  bill  in  the  nature  of  a 
bill  of  interpleader  against  the  tax  collectors  of  the  differ- 
ent towns  to  determine  to  which  of  them  the  tax  is  due, 
and  in  such  action  he  is  entitled  to  an  injunction  to  restrain 
the  collection  of  the  illegal  tax.^^ 

§  541.  Misappropriation  of  corporate  funds.  While  courts 
of  equity  do  not  interfere  with  the  action  of  municipal  officers 
under  their  legislative  or  discretionary  powers,  they  will  yet 
relieve  by  injunction  in  behalf  of  citizens  and  taxpayers  to 
prevent  the  corporate  officers  of  a  municipality  from  a  mis- 
appropriation of  its  property  and  funds.  And  where,  with- 
out legal  authority,  the  common  council  of  a  village  have  pur- 
chased land,  erected  buildings  thereon  for  private  purposes, 
and  have  issued  municipal  bonds  pledging  the  corporate  prop- 
erty and  its  faith  and  credit  tor  their  payment,  and  have  sold 
such  bonds  to  their  own  members,  so  gross  a  breach  of  trust 
and  fraud  upon  taxpayers  will  warrant  a  court  of  equity  in 
enjoining  the  collection  of  a  tax  imposed  for  the  payment  of 
interest  upon  such  bonds. ^^ 

25  Eversole  v.  Cook,  92  Ind.,  222.         27  Dorn  v.   Pox,   61   N.    Y.,    264, 

26  Union  Pacific  R.   Co.  v.   Carr,     reversing  S.  C,  6  Lans.,  162. 

1  Wyoming,  96.  But  see,  contra,  28  Stierlock  v.  Village  of  Winnet- 
Chisholm  v.  Adams,  71  Tex.,  678,  ka,  59  111.,  289;  S.  C.  upon  final 
10  S.  W.,  336.  hearing,  68  111.,  530. 


516  iNJuxcTioxs.  [chap.  viir. 

§  542.  The  same.  Where  a  city  has  itself  created  a  nui- 
sance by  the  construction  of  its  streets  in  such  a  manner  as  to 
cause  the  water  to  stand  upon  certain  lots,  it  can  not,  for  the 
purpose  of  abating  the  nuisance,  tax  the  lots  themselves,  and 
a  sale  of  such  lots  for  payment  of  the  tax  will  be  enjoined.^^ 
And  a  city  being  regarded  as  in  the  nature  of  a  trustee  for  the 
corporators,  an  unauthorized  appropriation  of  its  funds,  as 
for  the  celebration  of  the  Fourth  of  July,  may  be  enjoined 
by  taxpayers.^^  So  where,  in  violation  of  its  charter,  a 
municipal  corporation  is  about  to  issue  its  bonds  and  securi- 
ties for  a  purpose  unauthorized  by  law,  and  to  levy  a  tax  for 
the  payment  thereof,  property  owners  liable  to  such  tax 
are  entitled  to  an  injunction  against  the  municipal  authori- 
ties upon  the  ground  of  preventing  a  multiplicity  of  suits. 
But  such  individual  taxpayers  can  not  restrain  the  munici- 
pal authorities  from  controlling  and  disposing  of  so  much 
of  the  tax  as  has  already  been  collected,  and  if  any  illegal 
appropriation  of  such  money  is  attempted  or  threatened,  it 
can  only  be  restrained  upon  complaint  of  some  one  represent- 
ing the  entire  public  to  whom  the  money  belongs.^^ 

§  543.  Injuntion  refused  where  remedy  at  law.  Although 
relief  by  injunction  is,  as  we  have  thus  seen,  more  freely 
granted  in  cases  of  municipal  assessments  than  in  cases  of 
general  taxes,  still  if  the  objections  may  be  urged  and  the 
grievances  adjusted  in  a  court  of  law,  equity  will  not  inter- 
fere with  the  assessment.^-  And  where,  by  the  proceedings 
of  the  corporate  authorities  in  making  the  assessment,  a  rem- 
edy is  provided  for  all  persons  aggrieved,  and  the  proceed- 

29  Weeks  v.  Milwaukee,  10  Wis.,  Co.,  25  111.,  43;  Fajder  v.  Village 
242.  of  Aitkin,  87  Minn.,  445,  92  N.  W., 

30  New  London  v.  Brainard,  22  332,  934;  Kerr  v  City  of  Waseca, 
Conn.,  552.  88  Minn.,  191,  92  N.  W.,  932;  Rid- 

31  Coulson  V.  Portland,  Deady's  die  v.  Town  of  Charlestown,  43 
Reports,  481.  West  Va.,  796,  28  S.  E.,  831.     And 

3ii  McBride  v.  Chicago,  22  111.,  see  Douglass  v.  Town  of  Harris- 
574;   Ottawa  r.  Chicago  &  R.  I.  R.     ville,  9  West  Va.,  162. 


CHAP.  Vlll.]  AGAINST  TAXES.  517 

ings  may  be  removed  by  certiorari  to  the  proper  tribunal,  an 
injunction  will  not  be  granted.^^  So  equity  will  not  enjoin 
the  sale  of  lands  under  a  judgment  for  a  delinquent  special 
assessment  upon  the  ground  that  the  improvement  was  not  made 
in  compliance  with  the  provisions  of  the  ordinance,  since  the 
aggrieved  party  has  a  complete  remedy  at  law  by  mandamus 
to  compel  the  city  to  construct  and  complete  the  work  in 
accordance  with  the  specifications  of  the  ordinance.^*  And  in 
no  event  will  such  a  sale  be  enjoined  upon  grounds  of  which 
the  taxpayer  might  have  availed  himself  by  way  of  objection 
either  to  the  judgment  of  confirmation  or  of  sale.^^  Nor  will 
an  injunction  be  allowed  to  restrain  the  exercise  of  the  munici- 
pal authority  of  a  city  in  the  levying  and  collection  of  a  tax 
upon  the  ground  that  the  passage  of  an  ordinance  in  relation 
to  the  tax  is  in  violation  of  the  city  charter.^^ 

§  544.  Equity  will  not  review  proceedings  of  municipal 
officers.  It  is  also  to  be  borne  in  mind  in  determining  the 
nature  and  extent  of  the  jurisdiction  of  equity  in  restraint 
of  municipal  taxation,  that  a  court  of  equity  will  not  sit  as 
a  court  of  errors  to  review  and  correct  the  proceedings  of 
municipal  bodies  and  of  inferior  political  jurisdictions  em- 
powered by  law  with  the  levying  of  assessments,  this  being- 
properly  matter  of  legal  rather  than  equitable  cognizance.^'^ 

33  Betts  V.  Williamsburgh,  15  3g  Page  v.  St.  Louis,  20  Mo.,  137. 
Barb.,  255;  United  Lines  T.  Co.  v.  37  Mayor  v.  Meserole,  26  Wend., 
Grant,  137  N.  Y.,  7,  32  N.  E.,  1005.  132,  rever  ing  S.  C,  8  Paige,  198: 

34  Callister  v.  Kochersperger,  168  Hey  wood  v.  Buffalo,  14  N.  Y.,  534; 
111.,  334,  48  N.  E.,  156;  Heinroth  Blake  v.  Brooklyn,  26  Barb.,  101; 
V.  Kochersperger,  173  111.,  205,  50  Lambeth  v.  DeBellevue,  24  La. 
N.  E.,  171;  Craft  r.  Kochersperger,  An.,  394;  West  v.  Ballard,  32  Wis., 
173  111.,  617,  50  N.  E.,  1061.  168;    Brodnax  v.  Groom,  64  N.  C, 

35  Smith  V.  Kochersperger,  180  244.  See  also  Mitchell  v.  Board 
111.,  527,  54  N.  E.  614;  Field  v.  of  Commissioners,  74  N.  C,  489. 
Village  of  Western  Springs,  181  And  in  Blake  v.  Brooklyn,  26 
111.,  186,  54  N.  E.,  929.  See  Rusk  Barb.,  101,  the  court  say:  "If  the 
V.  Berlin,  173  111.,  634,  50  N.  E.,  assessment  be  illegal  or  unconsti- 
1071;  Watkins  r.  Griffith,  59  Ark.,  tutional,  the  plaintiff  can  not  be 
344,  27  S.  W.,  234.  compelled  to  pay  it,  and  he  need 


518  INJUNCTIONS.  [chap.  VIII. 

Thus,  upon  a  bill  to  enjoin  the  collection  of  state  and  munici- 
pal taxes,  the  courts  will  not  undertake  to  exercise  a  super- 
visory control  over  municipal  officers  charged  by  law  with  the 
duty  of  determining  the  amount  of  the  tax.  Such  officers 
being  a  branch  of  the  political  department  of  the  govern- 
ment, and  having  of  necessity  certain  discretionary  powers  in 
the  performance  of  their  duties,  the  court  will  not,  in  such  a 
proceeding,  inquire  into  the  propriety  of  their  appropriations, 
and  will  only  enjoin  when  they  have  acted  without  authority, 
or  when  they  have  violated  some  special  provision  of  law.^'* 
Nor  will  the  title  of  defendants  to  their  offices  in  such  case 
be  inquired  into  upon  the  proceeding  for  an  injunction.^^  So 
upon  a  bill  to  enjoin  a  tax  levied  for  the  payment  of  indebted- 
ness due  from  a  town,  the  court  will  not  review  the  allowance 
by  the  town  officers  of  claims  against  the  town.'**^  And  where 
the  taxing  power  is  vested  in  county  officers  under  proper 
legislative  authorit}^  subject  to  the  restriction  or  condition 
that  it  shall  be  exercised  only  for  the  necessary  expenses  of 
the  county,  a  court  of  equity  will  not  attempt  by  injunction 
to  interfere  with  the  discretion  of  such  officers  as  to  what 
constitute  necessary  expenses."^^     So  when  the  taxing  power 

not  anticipate  in  this  way   (by  in-  will  not  extend  its  jurisdiction  to 

junction),    this   defense   to   a   suit  review    such    proceedings,    unless 

at  law.     The  assessment  is  not  yet  they  are  productive  of  peculiar  or 

laid  or  its  amount  ascertained;  in-  irreparable   injury  to  the  land   of 

deed  the  work  is  not  done  or  even  the  plaintiff  or  must  lead  to  a  mul- 

commenced,    and    therefore    there  tiplicity  of  suits." 

can  not  be  a  pretense  of  a  cloud  "s  Lambeth  v.  DeBellevue,  24  La. 

upon  the  title  of  the  land.     If  an  An.,  394;  Lemont  v.  Singer  &  T.  S. 

assessment  were  laid,  however,  for  Co.,  98  111.,  94. 

the  expense  of  this  improvement,  ^^  Lambeth  r.  DeBellevue,  24  La. 

it    is  well    settled    that    a  bill    in  An.,  394. 

equity  and   an   injunction  are  not  *o  Lemont  r.  Singer  &  S.  T.  Co., 

the  proper  means  to  review  or  cor-  98  111.,  94. 

rect  such  proceedings  of  a  munici-  *^  Brodnax   r.    Groom,   64    N.    C  , 

pal  corporation.       There  are  suffi-  244.     See  also  Mitchell  r.  Board  ot 

clent    common     law     remedies    in  Commissioners,   74  N.  C,  489. 

such  cases,  and  a  court  of  equity 


CHAP,  VIII.]  AGAINST  TAXES.  519 

is  fully  and  absolutely  vested  in  a  board  of  municipal  officers, 
such  as  a  county  board  of  supervisors,  without  qualification 
or  restriction,  and  the  property  in  question  is  subject  to  taxa- 
tion, equity  will  not  ordinarily  interfere  by  injunction  to  re- 
strain the  levy  and  collection  of  the  tax,  but  will  leave  the 
taxpayer  who  is  aggrieved  by  any  irregularities  or  errors 
in  the  assessment  to  his  appropriate  legal  remedy.  The  tax- 
ing power  in  such  case  is  regarded  as  in  the  nature  of  a  legis- 
lative power,  and  the  courts  are  loth  to  interfere  with  the 
action  of  municipal  officers  instructed  with  such  power,  for 
the  purpose  of  dete*rmining  the  necessary  amount  of  taxes  to 
be  levied.  In  other  words,  the  power  to  levy  the  tax  being 
conceded,  and  the  property  being  subject  to  taxation,  equity 
should  not  enjoin  because  of  irregularities  or  excessive  as- 
sessments, but  should  leave  complainant  to  pursue  his  legal 
remedy.  And  when  such  board  of  officers  is  charged  with  levy- 
ing a  larger  amount  of  taxes  than  is  necessary,  with  the 
fraudulent  design  of  applying  such  excess  to  an  unlawful 
purpose,  the  court  may  refuse  to  enjoin  the  assessment,  and 
wait  until  it  is  attempted  to  appropriate  the  money  illegally, 
and  may  then  enjoin  if  unable  to  afford  any  adequate  legal 
remedy  .■*- 

§  545.  Mere  illegality  not  sufficient  ground  for  injunction. 
The  general  doctrine  which  has  been  discussed  in  the  pre- 
ceding pages,  denying  relief  by  injunction  against  the  col- 
lection of  a  general  tax  upon  the  ground  of  a  mere  illegality 
when  it  is  not  shown  that  its  enforcement  would  lead  to  a 
multiplicity  of  suits,  or  produce  irreparable  injury  or  a  cloud 
upon  title,  is  equally  applicable  to  an  assessment  made  by  a 
board  of  municipal  officers,  which  is  levied  in  the  exercise  of 
the  taxing  power  for  purposes  of  local  improvement.^^  So 
it  is  held  in  Wisconsin  that  the  fact  of  voters  at  a  town 
meeting  having  voted  an  illegal  tax  is  not  of  itself  sufficient 

42  West  V.  Ballard,  32  Wis.,  168.       Sperry  v.   City  of  Albina,  17  Ore., 

43  Dean   v.   Davis,    51    Cal.,   406;     481,  21  Pac,  453. 


520  INJUNCTIONS.  [chap.  VIII. 

reason  for  restraining  the  town  officers  from  carrying  the 
action  of  the  voters  into  effect.  And  in  withholding  equit- 
able relief  in  such  case  the  court  proceeds  upon  the  prin- 
ciple that  if  the  vote  is  carried  into  effect  and  an  illegal  tax 
is  assessed  it  will  not  necessarily  result  in  irreparable  in- 
jury, since  plaintiff's  will  have  their  action  at  law  to  re- 
cover back  the  money,  if  paid  under  protest,  or  on  levy  or 
distraint  of  personal  property;  or  if  the  tax  be  extended 
against  their  real  estate,  they  will  have  a  remedy  in  equity 
to  remove  the  supposed  cloud  from  their  title.^^  An  addi- 
tional reason  for  withholding  relief  by  injunction  in  such  case 
is  found  in  the  great  public  inconvenience  which  would  re- 
sult from  the  exercise  of  the  jurisdiction  under  such  circum- 
stances, since  by  such  exercise  of  preventive  relief  it  would 
lie  in  the  power  of  every  taxpayer  to  arrest  by -injunction  all 
proceedings  upon  the  part  of  public  officers  in  the  discharge 
of  their  duties,  and  to  compel  such  officers  to  come  into  a 
court  of  justice  to  establish  and  defend  the  correctness  of 
their  proposed  official  acts  before  proceeding  to  their  per- 
formance.^^ 

§  546.  Municipal  tax  against  personal  property  not  ordi- 
narily enjoined.  Although  relief  by  injunction  has  been  al- 
lowed against  a  sale  of  lands  in  satisfaction  of  municipal  taxes 
which  were  void,*^  or  where  there  has  been  a  failure  to  com- 
ply with  the  requirements  of  the  law,  the  courts  are  exceed- 
ingly averse  to  interfering  with  a  sale  of  personalty,  pre- 
ferring to  leave  the  aggrieved  taxpayer  in  such  case  to  pur- 
sue his  legal  remedy."*''^  And  in  cases  of  municipal  taxes 
or  assessments  levied  upon  personal  property,  equity  will  not 
interfere   by   injunction   merely   because   of  the   illegality   of 

»•  Judd  V.  Town  of  Fox  Lake,  28  Ladd  r.   Spencer,  23   Ore.,  193,   31' 

Wis.,  583;  Sage  v.  Town  of  Fifield,  Pac,  474. 

68  Wis.,  546,  32  N.  W.,  629.  *'  Mayor  v.  Baldwin,  57  Ala.,  61; 

'«.'■.  Judd  V.  Town  ofPox  Lake,  28  Baldwin    r.   Tucker,   16    Fla.,    258; 

Wis.,  583.  Williams  v.  Mayor,  2  Mich.,  560. 

•»«  Mayor  v.  Porter,  18  Md.,  284; 


CHAP.  VIII.]  AGAI^ ST  TAXES.  521 

the  tax,  since  in  such  case  the  taxpayer  may  find  ample 
remedy  at  law  by  an  action  for  the  trespass  which  would 
result  from  the  collection  of  such  tax.'*^  So  where  authority 
is  conferred  by  statute  upon  the  common  council  of  a  city 
to  make  an  assessment  for  paving,  the  court  will  not  restrain 
the  execution  of  a  warrant  against  the  goods  and  chattels 
of  complainant  in  satisfaction  of  such  assessment  because  of 
irregularities   in  the   exercise  of  the   power.*^ 

§  547.  Enlargement  of  municipal  limits.  The  extension  by 
legislative  enactment  of  the  boundaries  of  a  city  or  munici- 
pality, so  as  to  embrace  agricultural  and  farming  lands  and 
to  subject  them  to  larger  burdens  of  municipal  taxation,  has 
given  rise  to  frequent  applications  for  preventive  relief  by 
injunction  against  the  enforcement  of  the  taxes  thus  imposed. 
There  is  a  direct  conflict  of  authority  in  the  adjudicated  cases 
upon  the  right  to  equitable  relief  in  this  class  of  cases.  Upon 
the  one  hand,  it  has  been  held  that  where  by  legislative  ac- 
tion the  limits  of  a  city  have  been  extended  by  taking  in  a 
large  amount  of  lands  not  necessary  for  municipal  purposes, 
the  sole  object  of  such  legislation  being  to  make  the  lands 
in  question  liable  to  city  taxation,  the  collection  of  such  taxes 
may  be  properly  enjoined.^^  Upon  the  other  hand,  the  better 
doctrine  undoubtedly  is,  that,  so  long  as  the  power  of  taxation 
conferred  by  the  legislative  department  of  government  upon 
a  municipal  corporation  is  not  in  contravention  of  the  con- 
stitution of  the  state,  and  so  long  as  its  exercise  is  confined 
within  the  limits  prescribed  by  law,  equity  will  not  enjoin  the 
collection  of  a  municipal  tax  imposed  upon  complainant's  prop- 
erty because  of  its  being  farming  property,  and  because  of 
the  extension  by  legislative  enactment  of  municipal  limits  so 

48  Mayor  v.  Baldwin,  57  Ala.,  61;  a  town  other  than  that  of  the  situs 

Baldwin    v.   Tucker,    16    Fla.,    258.  of  the  property.     Eversole  r.  Cook, 

But  in  Indiana  it  is  held  that  an  92  Ind.,  222. 

injunction  will  lie    to    prevent    a        *°  Williams  v.  Mayor,    2    Mich., 

sale  of  personal  property  in  satis-  560. 
faction  of  an  assessment  levied  by        ^o  Langworthy    v.    Dubuque,    13 


522  iNJuxcTiONS.  [chap.  viir. 

as  to  include  such  property.  In  such  case,  whether  the  power 
is  wisely  or  unwisely  bestowed,  or  whether  its  exercise  is 
or  is  not  burdensome  upon  the  citizen,  are  questions  whose 
determination  rests  with  the  legislative  rather  than  with  the 
judicial  department,  and  equity  will  not,  therefore,  interfere 
by  injunction.^^  And  in  a  proceeding  to  restrain  the  col- 
lection of  a  municipal  tax  upon  property  which  has  been  thus 
taken  within  the  boundaries  of  a  city,  the  court  will  not  in- 
quire into  or  consider  the  motives  which  may  have  led  to 
such  action.''^  But  where,  under  the  laws  of  a  state,  a  board 
of  county  commissioners  are  authorized  upon  the  application 
of  the  common  council  of  a  city  to  annex  contiguous  territory 
to  the  city,  but  their  authority  is  limited  to  granting  such 
petition  as  a  whole  and  they  have  no  power  to  annex  a 
part  only  of  the  property  petitioned  for,  the  annexation  of  a 
part  will  be  treated  as  void,  and  the  enforcement  of  taxation 
by  the  city  authorities  upon  the  part  so  annexed  will  be  en- 
joined.^^  And  w^hen  the  proceedings  for  such  annexation  are 
wholly  void  because  of  non-compliance  by  such  board  with 
the  statute  conferring  their  jurisdiction,  equity  may  restrain 
the  collection  by  the  city  of  taxes  upon  the  lands  so  an- 
nexed.^* Where,  however,  complainants  have  been  guilty  of 
great  laches  in  asserting  their  rights,  and  have  acquiesced 
for  a  series  of  years  in  the  annexation,  they  will  be  estopped 
from  enjoining,  upon  the  ground  of  the  invalidity  of  the  an- 
nexation, a  tax  imposed  upon  their  property  annexed  by  the 
municipality.''^ 

Iowa,  86;  Fulton  v.  City  of  Daven-  City  of  Greenville,  67  Tex.,   62,   2 

port,  17  Iowa,  404.  And  see  Brad-  S.  W.,  742. 

shaw  V.  City  of  Omaha,  1  Neb.,  16.  su  City  of  Logansport  r.  Seybold, 

•■■'i  Groff  V.    Mayor    of    Frederick  59  Ind.,  225. 

City,    44    Md.,    67;    Manley   v.    Ra-  ca  City  of  Peru  c.  Bearss,  55  Ind., 

leigh,    4    Jones   Eq.,    370.    And   see  576. 

Cooley  on  Taxation,  120.  where  the  "'i  Windman  v.  City    of    Vincen- 

reasons   for  withholding  equitable  nes,  58  Ind.,  480. 

relief  in  such  cases  are  very  clear-  ■>■>  City  of  Logansport  r.  La  Rose, 

ly  presented.     See  also  Graham  v.  99   Ind.,  117. 


CHAr.  VIII.]  AGAINST  TAXES.  523 

§  548.  Excessive  taxation  of  lots ;  real  estate  excluded  from 
city  limits.  It  is  proper,  however,  to  grant  relief  by  injunc- 
tion where  city  lots  used  by  a  railway  company  as  a  right 
of  way  are  properly  taxable  as  a  right  of  way,  but  when  in 
addition  thereto  they  have  been  subjected  to  an  increased 
assessment  as  town  and  city  lots.^*^  And  where  the  law  pro- 
vides that  no  special  assessment  charged  against  real  estate 
for  improvements  shall  exceed  one-quarter  of  the  value  of 
the  realty  and  an  assessment  is  levied  beyond  that  amount, 
the  excess  will  be  enjoined."  And  where  a  tract  of  land 
forming  an  addition  to  a  city  has  been  vacated  and  should 
thereafter  be  taxed  as  an  entire  tract,  instead  of  by  separate 
lots  as  before  the  vacation,  but  portions  of  the  tract  are 
illegally  assessed  as  lots,  the  enforcement  of  the  tax  as  to 
such  portions  may  be  prevented  by  injunction.'^s  So  where, 
by  an  amendment  to  the  charter  of  a  city,  a  portion  of  com- 
plainant's real  estate  is  placed  outside  the  limits  of  the 
municipality,  so  that  there  is  no  power  upon  the  part  of  the' 
city  authorities  to  sell  such  real  estate  for  delinquent  taxes, 
although  situated  within  the  city  boundaries  when  the  taxes 
became  due  and  payable,  they  may  be  enjoined  from  making 
such  sale.^9 

§  549.  Acquiescence  of  property  owner  as  an  estoppel.  The 
doctrine  of  equitable  estoppel  is  frequently  invoked  for  the 
purpose  of  defeating  applications  for  equitable  relief  against < 
municipal  taxation,  when  complainant's  conduct  has  been  such 
as  to  debar  him  from  the  relief  sought.  And  it  may  be  laid 
down  as  a  general  rule  that  where  one  has  assented  to  the 
levying  of  a  tax,  either  by  directly  petitioning  that  it  be 
assessed  for  certain  purposes,  or  by  standing  idly  by  and 
failing  to  avail  himself  of  the  remedy  provided  by  law  for 

56  Chicago  &  N.  W.  R.  Co.  v.  Mil-  ^s  Stebbins  v.  Challiss,  15  Kan., 
ler,  72  111.,  144.  55. 

57  Birdseye  r.  Village  of  Clyde,  59  Deason  v.  Dixon,  54  Miss.,  585. 
61  Ohio  St.,  27,  55  N.  E.,  169. 


524  INJUNCTIONS.  [chap.  VIII. 

questioning  the  regularity  of  the  proceedings,  he  is  estopped 
from  obtaining  relief  in  equity,  even  though  the  proceedings 
were  absolutely  null  and  void.^'*'  Thus,  property  holders  who 
have  petitioned  the  proper  authorities  for  the  paving  of  a 
street,  and  who,  during  the  progress  of  the  work,  have  made 
no  objection,  will  not  be  allowed  to  enjoin  the  collection  of 
the  assessment.  They  are  in  such  case  considered  as  having 
actively  consented  to  the  proceedings  resulting  in  the  assess- 
ment, and  their  implied  assent  will  be  presumed  to  the  assess- 
ment itself:"^^  And  under  such  circumstances  the  question  of 
the  legality  of  the  assessment  will  not  vary  the  case,  since, 
if  it  be  invalid,  the  remedy  of  the  parties  aggrieved  is  at  law.^^ 
And  the  owner  of  city  lots  who,  with  full  notice  of  all  the 
proceedings,  encourages  contractors  to  go  on  with  the  grad- 
ing of  a  street  and  assures  them  that  they  shall  be  paid,  is 
estopped  from  invoking  the  aid  of  equity  to  enjoin  the  col- 
lection of  a  special  tax  upon  his  lots  to  pay  for  such  grad- 
•ing.^3     gQ  when  a  land  owner  whose  property  is  benefited  by 

60  Kellogg  V.  Ely,  15  Ohio  St.,  64;  ment  for  the  improvement  in  ques- 

Jackson  v.  Detroit,  10  Mich.,  248;  tion.     See  also  Montgomery  v.  Wa- 

King    V.    Ford    River    L.     Co.,     93  sem,  116   Ind.,  343,   15  N.  E.,  795, 

Mich.,  172,  53  N.  W.,  10;  Weber  v.  19  N.  E.,  184;    Darst  i:  Griffin,  31 

San  Francisco,  1  Cal.,  455;   Peoria  Neb.,   668,  48   N.  W.,  819.     But  in 

V.    Kidder,    26    111.,    351;     Meadow-  Hopkins  r.   Greensburg    Company, 

croft  V.  Kochersperger,  170  111.,  356,  40  Ind.,  44,  it  is  held  that  the  own- 

48  N.  E.,  987;   Sexsmith  v.  Smith,  ers  of  lands  illegally  assessed  for 

32   Wis.,   299;    Ritchie   v.   City   of  the    construction    of    public    roads 

South   Topeka,    38    Kan.,     368,     16  are   not    estopped    from    enjoining 

Pac,    332;     Stewart   r.     Board     of  the  assessment  because  they  have 

Commissioners,   45    Kan.,    708,     26  stood   by  and   seen   the  work  pro- 

Pac,   683,    23    Am.    St.    Rep.,   746;  gress  without  objection,  or  because 

Wingate   v.   Astoria,   39   Ore.,   603.  they  have  used  the  road  after  its 

65  Pac,  982,  6  Munic.  Corp.  Cas.,  construction.      See     also     Greens- 

815;    Byram   v.   Detroit,    50   Mich.,  burg  Company  r.  Sidener,  40  Ind., 

56,  12  N.  W.,   912,  14   N.  W.,  968.  424;  Pavy  r.  Greensburg  Company, 

And  see  this  case  as  to  the  effect  42   Ind.,  400. 

upon    the    application    for    an     in-  «i  Motz  r.  Detroit,  18  Mich.,  495. 

junction  of  a  subsequent  act  of  the  •">-  Id. 

legislature  authorizing  a  re-assess-  «»  Sleeper  r.  Bullen,  6  Kan.,  300. 


CHAP.  VIII.]  AGAINST  TAXES.  525 

a  municipal  iniproveinent,  such  as  the  improvement  of  a  high- 
way or  street,  has  suffered  the  proceedings  to  go  on  with 
full  knowledge  thereof  and  without  objection  until  the  work 
is  substantially  completed,  he  is  estopped  in  equity  from  re- 
lief by  injunction  against  an  assessment  levied  for  payment 
of  such  improvement.^^  And  where  the  plaintiff,  a  citizen  and 
taxpayer,  joins  in  a  petition  to  the  common  council  of  a  city 
for  the  improvement  of  a  street  in  front  of  his  premises,  and 
interposes  no  objection  to  the  work  until  after  its  completion, 
he  can  not  be  permitted  to  enjoin  the  issuing  of  a  tax  deed 
upon  the  sale  of  his  premises  for  a  tax  levied  for  the  pay- 
ment of  such  improvement."^  So  property  owners  upon  the 
line  of  a  street  whose  property  is  subject  to  assessment  for 
street  improvements  can  not  enjoin  the  city  from  making  or 
enforcing  assessments  upon  their  premises  in  payment  for 
such  improvements,  upon  the  ground  that  the  work  has  not 
been  done  according  to  contract,  or  because  of  defects  in  its 
execution,  when  they  have  permitted  it  to  be  completed  and 
accepted  and  the  contract  price  to  be  paid  before  seeking 
relief  in  equity."^*^  But  where  a  statute  provides  that  assess- 
ments for  the  improvement  of  real  estate  shall  not  exceed 
one-quarter  of  the  value  thereof,  a  property  owner  will  not 
be  prevented  from  enjoining  an  assessment  which  exceeds 
that  amount  by  the  fact  that  he  joined  in  the  petition  for  the 
improvement,  since  he  had  no  reason  to  know  that  the  limita- 
tion thus  imposed  would  be  exceeded."^ 

64  Quinlan  v.  Myers,  29  Ohio  St.,  the  city  charter  that  the  signing 
500;  Ritchie  r.  City  of  South  Tope-  of  a  petition  for  a  street  improve- 
ka,  38  Kan.,  368,  16  Pac,  332;  By-  ment  shall  be  construed  as  a  re- 
ram  V.  Detroit,  50  Mich.,  56,  12  N.  lease  of  all  claim  for  damages  re- 
W.,  912,  14  N.  W.,  968;  Atwell  -;;.  suiting  from  such  improvement. 
Barnes,  109  Mich.,  10,  66  N.  W.,  6(!  Liebstein  v.  Mayor,  9  C.  E. 
583;  Fitzhugh  v.  City  of  Bay  City,  Green,  200;  Dusenbury  v.  Mayor, 
109  Mich.,  581,  67  N.  W.,  904.  10  C.  E.  Green,  295.  See  also  Lewis 

65  Sexsmith   v.    Smith,    32    Wis.,  v.    City    of    Elizabeth,    10     C.     E. 
299.    And  the  court  also  hold  that  Green,  298. 

in  such  a  case  it  is  proper  to  take  67  Birdseye  r.  Village  of  Clyde, 
into   consideration   a   provision   of     61  Ohio  St.,  27,  55  N.  E.,  169. 


526  INJUNCTIONS.  [chap.  VIII. 

§  550.  Limitations  upon  the  doctrine  of  estoppel.  Not- 
withstanding the  well  established  doctrine  of  equitable  es- 
toppel as  applied  to  the  class  of  cases  under  consideration,  a 
distinction  has  been  drawn  in  its  application  between  cases 
where  relief  is  sought  upon  the  ground  of  some  irregularity, 
and  cases  where  the  tax  is  absolutely  null  and  void.  And 
in  the  latter  class  of  cases  it  is  held  that  the  fact  of  com- 
plainant having  delayed  seeking  relief  until  the  improvement 
for  which  the  assessment  is  levied  is  completed,  or  until  his 
property  is  advertised  for  sale,  does  not  constitute  such  laches 
or  acquiescence  as  to  debar  him  from  relief  by  injunction.''^'* 
So  the  fact  that  the  owner  of  property  abutting  upon  a  public 
street  has  failed  to  enjoin  the  prosecution  of  a  work  of  im- 
provement upon  the  street,  which  has  been  illegally  ordered  by 
the  municipal  authorities,  and  has  paid  one  assessment  for  the 
work  under  protest,  will  not  operate  as  an  estoppel  to  prevent 
him  from  obtaining  an  injunction  against  the  collection  of  a 
subsequent  assessment  levied  for  the  same  work  after  its  com- 
pletion.*^^  And  it  has  been  held  that  where  an  injunction 
against  a  tax  levied  in  aid  of  a  public  improvement  is  resisted 
upon  the  ground  of  plaintiff's  acquiescence  in  the  work  with- 
out objection  during  its  progress,  the  answer  relying  upon  this 
as  an  estoppel,  it  is  not  a  sufficient  bar  to  the  relief  unless 
it  is  shown  that  plaintiffs  had  a  right  of  action  for  which  they 
might  have  instituted  proceedings  earlier  for  the  purpose  of 
enjoining  the  tax."^*^ 

§  551.  Amount  due  must  be  paid  or  tendered ;  exceptions. 
The  maxim  that  he  who  would  have  ecjuity  must  first  do  equity 
is  applicable  to  cases  where  relief  is  sought  by  injunction 
against  municipal  taxation,  as  well  as  to  other  branches  of  the 
law  of  injunctions."^     And  where  a  special  assessment  is  made 

««  Holland  v.  Mayor,  11  Md.,  186;  oo  Tallant  v.  City  of  Burlington, 

Mayor  v.  Porter,  18  Md.,  284;  May-  39  Iowa,   543. 

or   V.   Grand   Lodge,    44    Md.,    436;  7o  Sim  r.  Hurst,  44  Ind.,  579. 

Harmon  v.  City  of  Omaha,  53  Neb.,  '^i  Meadowcroft  v.  Kochersperger, 

]r,4.   73   N.   W..   671.  170   Tll„   356,  48  N.  E.,  987. 


CHAP.  VIII.]  AGAINST  TAXES.  527 

upon  city  lots  for  the  improvement  of  adjacent  streets,  and 
by  mistake  a  portion  of  plaintiff's  land  is  assessed  for  too  large 
a  sum,  but  the  amount  of  such  excess  is  plainly  ascertainable 
from  an  inspection  of  the  assessment  roll,  the  collection  of  the 
excess  will  be  enjoined  only  upon  condition  of  plaintiff  pay- 
ing the  amount  which  is  properly  due.'^^  g^  ^  property  owner 
in  a  city,  who  acquiesces  in  the  making  of  street  improvements 
in  front  of  his  premises,  interposing  no  objection  thereto 
while  the  work  is  in  progress,  can  not  be  permitted  after 
its  completion  and  its  acceptance  by  the  city  to  enjoin 
the  collection  of  the  entire  assessment  levied  for  payment  of 
the  work,  upon  the  ground  that  it  was  not  performed  in  accord- 
ance with  the  contract,  without  having  tendered  the  actual 
value  of  the  improvement."^^  But  where  a  property  owner  has 
made  his  protest  against  the  improvement  in  anticipation  of 
the  proceeding,  he  may  afterward  enjoin  the  enforcement  of 
an  illegal  assessment  based  upon  such  proceeding  without  first 
making  tender  or  payment  of  the  amount  of  benefit  con- 
ferred.'^^ And  where  the  whole  plan  or  system  upon  which  an 
assessment  for  improvements  is  made  is  illegal,  so  that  the  en- 
tire assessment  falls  and  there  is  consequently  no  means  of 
ascertaining  what  portion  of  the  charge  represents  actual  bene- 
fits received,  no  tender  or  payment  is  required."^^ 

§  552.  When  injunction  allowed  as  an  incident  to  other  re- 
lief. While,  as  has  already  been  shown,  the  existence  of  an 
adequate  remedy  at  law  generally  operates  as  a  complete  bar 
to  relief  by  injunction  against  illegal  taxation,  the  jurisdic- 
tion may  properly  be  exercised  as  an  incident  to  other  equit- 
able relief  sought  as  the  principal  object  of  the  action,  not- 
withstanding the  illegal  tax  complained  of  might  be  remedied 

72  Mills  V.  Charleton,  29  Wis.,  "4  Ladd  v.  Spencer,  23  Ore.,  193, 
400.     See  Dean  r.  Borchsenius,  30     31  Pac,  474. 

Wis.,  237.  -!■>  Norwood  v.   Baker,   172  U.  S., 

73  City  of  Evansville  v.  Pfisterer,  269,  19  Sup.  Ct.  Rep.,  187;  Bidwell 
34  Tnd.,  36.  v.  Huff,  103  Fed.,  362;    Zehnder  v. 

Barber  Asphalt  Co.,  106  Fed.,  103. 


528  INJUNCTIONS.  [CIIAP.  VIII. 

at  law.  For  example,  where  the  principal  object  of  the  action 
is  to  annul  and  set  aside  an  unauthorized  and  fraudulent  con- 
tract made  by  the  officers  of  a  municipality,  if  the  facts  shown 
are  sufficient  to  warrant  a  court  of  equity  in  setting  aside  the 
contract  at  the  suit  of  taxpayers,  the  court  may  as  a  sub- 
sidiary^ ground  of  relief  enjoin  a  tax  levied  for  the  purpose  of 
carrying  the  contract  into  effect,  even  though  as  to  the  tax 
alone  there  would  be  ample  remedy  at  law.  In  such  ease,  the 
court  having  properly  acquired  jurisdiction  for  one  purpose 
may  proceed  to  administer  full  and  complete  relief  for  all  pur- 
poses; and  it  will  not  annul  the  contract  and  at  the  same  time 
permit  the  tax  to  be  collected  only  to  be  recovered  back  by  a 
multiplicity  of  suits,  but  will  enjoin  the  tax  as  an  incident  to 
annulling  the  contract."*^ 

§  553.  Tax  upon  business  in  city;  license  tax  upon  occupa- 
tions. An  injunction  has  been  allowed  to  prevent  a  sale  of 
property  in  satisfaction  of  a  license  tax  held  to  De  unconsti- 
tutional.'^'^ And  where  persons  are  engaged  in  a  particular 
business  in  a  city,  as  the  owners  and  keepers  of  a  public  stable, 
upon  which  they  are  taxed  by  a  municipal  ordinance,  and  as 
a  necessary  incident  to  their  principal  business  they  are  en- 
gaged in  a  subordinate  occupation,  such  as  the  carrying  of 
passengers  and  baggage  for  hire,  and  the  city  authorities  at- 
tempt to  enforce  a  separate  tax  upon  the  subordinate  business, 
it  is  held  to  be  no  abuse  of  discretion  to  grant  an  interlocutory 
injunction  against  the  enforcement  of  the  latter  tax  until  the 
final  hearing  of  the  cause.'^^  But  an  injunction  will  not  lie  to 
prevent  the  enforcement  of  fines  levied  by  a  municipal  court 

TO  Peck  V.  School  District  No.  4,  in   Georgia    it   is    lield    that  a   tax 

21  "Wis.    516.  levied  upon  the  sales  of  a  particii- 

77  Waters    P.    O.    Co.   v.    City    of  lar  commodity,  such  as  cotton,  in 

Little    Rock,    39    Ark.,    412.      And  violation  of  a  statute  of  the  state, 

see   Banger's   Appeal,  109   Pa.   St.,  may  be  enjoined.    Mayor  v.  Flour- 

79,  as  to  the  right  to  restrain  the  noy,  65  Ga.,  231. 
colloction    of   a   tax    upon   occupa-        78  Mayor  of  Savannah  v.  Dehon- 

tions,  for  want  of  uniformity.  And  ey,  55  Ga.,  33. 


CHAP.  VIII.]  AGAINST  TAXES.  529 

for  non-payment  of  a  municipal  tax  in  the  nature  of  a  license 
upon  trades  or  occupations,  and  to  enjoin  proceedings  for  the 
<3ollection  of  such  tax,  when  the  law  under  which  the  license 
is  imposed  is  not  in  excess  of  legislative  authority,  and  when 
no  unjust  discrimination  has  been  made  in  the  imposition  of 
the  tax  upon  different  occupations."" 

§  554.  Assessment  for  improving  streets,  when  enjoined.  An 
assessment  levied  upon  lands  as  an  entirety,  which  is  properly 
chargeable  only  upon  a  portion  of  the  premises,  has  been  en- 
joined. Thus,  where  an  assessment  for  improving  streets  was 
made  a  charge  upon  plaintiff' 's  entire  property,  when  only  the 
front  to  the  usual  depth  of  lots  was  legally  chargeable  and 
Jiable  to  be  assessed  for  the  improvement,  the  collection  of  the 
assessment  was  enjoined,  but  without  prejudice  to  the  right 
of  the  city  to  collect  the  amount  properly  chargeable  against 
plaintiff"s  lands.^"^ 

§  555.  Repeal  of  ordinance ;  premature  application ;  munici- 
paJ  election  to  vote  tax.  Equity  will  not  interfere  by  injunc- 
tion with  the  collection  of  municipal  taxes  and  assessments 
when  no  real  or  immediate  necessity  exists  for  relief.  It  will 
not,  therefore,  enjoin  the  enforcement  of  a  city  tax  upon  the 
ground  of  its  illegality  when  the  ordinance  under  which  the 
tax  was  attempted  to  be  imposed  has  been  repealed.^i  And 
when  some  of  the  complainants  filing  a  bill  to  restrain  the  col- 
lection of  a  municipal  tax  show  by  the  bill  that  they  are  not 
subject  to  the  tax,  since  they  do  not  come  within  the  provi- 
sions of  the  city  ordinance  imposing  it,  but  there  is  sufficient 
remedy  at  law  for  the  parties  thus  aggrieved  when  an  attempt 
is  made  to  collect  the  tax,  equity  should  not  enjoin.^^  jvJqj,  -^jjj 
the  municipal  authorities  of  a  city  be  enjoined  from  holding 
an  election  under  an  act  of  legislature  to  submit  to  the  voters 

■?9  Blessing  v.  City  of  Galveston,  «i  Goodwin  v.  Mayor  of  Savan- 
42  Tex.,  6^1.  nah,  53  Ga.,  410. 

80  Griswold    v.   Pelton,    34     Ohio         S2  id. 
St.,  482.     And  see  Chamberlain  v. 
Cleveland,  34  Ohio  St.,  551. 
34 


530  INJUNCTIONS.  [chap,  VIII. 

the  question  of  whether  a  particular  tax  shall  be  levied,  even 
though  it  be  alleged  that  the  act  is  unconstitutional,  since 
such  an  injunction  would  be  premature  in  advance  of  any 
actual  levy  of  a  tax,  and  the  danger  of  a  tax  being  levied 
is  too  remote  to  warrant  relief  in  equity .^^ 

§  556.  Assessments  for  pavements  ajid  improvements ;  assess- 
ment based  on  frontage  rule.  As  regards  the  question  of  equit- 
able relief  against  municipal  assessments  for  public  improve- 
ments, such  as  streets,  roads,  ditches  and  kindred  improve- 
ments, relief  by  injunction  is  freely  granted  when  the  pro- 
ceedings of  the  municipal  authorities  are  had  under  an  un- 
constitutional law,  or  are  otherwise  wholly  illegal  and  void, 
and  hence  in  excess  of  the  jurisdiction  of  such  bodies,  such 
cases  being  plainly  distinguishable  from  cases  of  a  mere  ir- 
regularity in  a  proceeding  where  jurisdiction  exists.^-'  And 
where  the  assent  of  a  majority  of  the  property  owners  front- 
ing upon  a  street  is  required  to  authorize  the  paving  of  the 
street,  it  is  held  that  without  such  assent  the  proceedings 
are  void,  and  a  court  of  equity  has  jurisdiction,  upon  the  ap- 
plication of  such  owners  as  have  not  assented,  to  enjoin  a  sale 
of  property  for  such  paving.^^  So  where  the  law  requires 
the  giving  of  notice  to  property  owners  of  resolutions  for  pub- 
lic improvements,  such  requirement  is  jurisdictional  in  its 
character  and  the  failure  to  give  the  notice  constitutes  ground 
for  injunctive  relief  against  a  special  assessment  based  upon 
the  resolution.^^    And  where  a  special  assessment  is  wholly  il- 

83  Roudanez  v.  Mayor  of  New  Or-  422,  64  N.  W.,  299,  65  N.  W.,  500; 

leans,  29  La.  An.,  271.  Beaser  v  City  of  Ashland,  89  Wis., 

>*•*  Teegarden   v.    Davis,    36    Ohio  28,  61  N.  W.,  77;   Watkins  v.  Grif- 

St.,    601;    Citx   of    Fort   Wayne   v.  fith,  59  Ark.,  344,  27  S.  W.,  234. 

Shoaff,  106  Ind.,  66,  5  N.  E.,  403;  s-^- Ogden  City  r.  Armstrong,  168 

City  of  Terre  Haute  v.  Mack,  139  U.   S.,   224,  18    Sup.   Ct.   Rep.,  98; 

Ind.,   99,  38   N.   E.,   468;    Curry   v.  Holland  ?'.   Mayor,    U     Md.,    186; 

Jones,  4  Del.  Ch.,  559;  Hutchinson  Bouldin  v.  Mayor,  15  Md.,  18;  Har- 

V.  City  of  Omaha,  52  Neb.,  345,  72  mon   v.    City    of    Omaha,    53    Neb., 

N.   W.,    218;    Armstrong    r.   Ogden  164,  73  N.  W.,  671. 

City,  12  Utah,  476,  43  Pac,  119;  ^<' .Joyce  v.  Barron,  67  Ohio  St.. 
Dietz  V.  City  of  Neenah,  91  Wis., 


CHAP.  VIII.]  AGAINST  TAXES. 


531 


legal  and  void  as  being  based  upon  the  front  foot  rule  and 
therefore  imposed  without  regard  to  the  question  of  special 
benefits  conferred,  an  injunction  is  the  appropriate  remedy 
to  restrain  the  enforcement  of  the  assessment.^'^  And  in  such 
case,  where  the  rule  or  system  of  valuation  thus  fails,  it  is 
not  necessary  that  the  property  owner  should  show  that  the 
amount  charged  against  his  property  exceeds  the  benefits 
actually  accruing  or  to  tender  what  appears  to  be  the  amount 
of  benefit  actually  conferred.^^  So  where  an  assessment  for 
the  construction  of  public  roads  is  entirely  void  because  of  the 
omission  by  the  assessors  of  certain  lands  from  their  list,  the 
tax  may  be  enjoined  at  the  suit  of  property  owners  affected 
thereby.^^  But  the  collection  of  an  assessment  for  paving  and 
improving  streets  will  not  be  enjoined  upon  the  ground  that 
such  paving  is  an  interference  with  the  rights  and  franchises 
of  a  plank-road  company  having  the  right  to  use  the  street, 
the  injunction  being  sought,  not  by  the  company,  but  by  an 
adjacent  lot  owner.'^o  Where,  however,  property  owners  are 
about  to  be  damaged  by  the  collection  of  assessments  upon 
their  property  for  purposes  of  improvement  by  an  assumed 
corporation,  such  as  a  drainage  company,  which  has  never  been 
legally  incorporated,  although  claiming  to  act  in  a  corporate 
capacity,  they  may  be  allow^ed  an  injuntion  against  such  as- 
sessment, the  action  being  brought  against  the  pretended  cor- 

264,   65  N.   E.,  1001;    Ives  v.   Irey,  ment  therefor  was  based  upon  the 

51  Neb..  136,  70  N.  W.,  961.  frontage  rule. 

S7  Norwood  v.  Baker,  172  U.   S.,  ss  Norwood   v.   Baker,  172   U.   S., 

269,    293,    19    Sup.    Ct.    Rep.,    187;  269,  19  Sup.  Ct.  Rep.,  187;  Bidwell 

Cowley    V.    City    of     Spokane,     99  v.  Huff,  103  Fed.,  362;   Zehnder  v. 

Fed.,    840;    Bidwell     v.    Huff,     103  Barber  Asphalt  Co.,  106  Fed.,  103. 

Fed.,  362;    Zehnder  v.   Barber  As-  **»  Robbins  i\   Sand  Creek  Turn- 

phalt  Co.,  106  Fed.,  103.     In  McKee  pike  Co.,  34  Ind.,  461;  Greencastle 

V.   Town  of  Pendleton,    154     Ind.,  &  Bowling  Green  Turnpike  Co.  v. 

652,  57  N.  E.,  532,  the  injunction  Albin,    34     Ind.,    554;     Forgey     v. 

ran   against  the   town   authorities  Northern  Gravel  Road  Co.,  37  Ind. 

restraining    them    from     entering  118.      See    Pendleton     Co.    r.     Bar- 

into   a   contract   for    the    improve-  nard,  40  Ind.,  146. 

ment  of  a  street  where  the  assess-  oo  Bagg  v.  Detroit,  5  Mich.,  336. 


532  INJUNCTIONS.  [chap.  VIII.' 

poration  by  its  name  as  siich.^^  But  in  an  action  to  restrain 
the  sale  of  lands  for  an  unpaid  assessment  for  improving  a 
street,  upon  the  ground  of  irregularities  in  imposing  the  assess- 
ment, the  burden  of  proof  rests  upon  the  plaintiff,  and  no  pre- 
sumption will  be  indulged  against  the  validity  or  legality  of 
the  acts  of  the  municipal  authorities.*^-  But  a  property  owner 
will  not  be  allowed  to  retain  the  benefit  of  a  ijublic  improve- 
ment, such  as  curbing  a  street,  and  after  its  completion  en- 
join the  collection  of  the  assessment  because  of  irregularities 
and  because  of  an  excessive  assessment,  without  tendering  the 
-amount  for  which  his  property  is  justly  liable.^^ 

§  557.  Municipal  bonds  illegally  issued.  When  an  injunc- 
tion is  sought  to  restrain  the  collection  of  a  tax  levied  for  the 
payment  of  municipal  bonds,  but  the  only  evidence  before 
the  court  as  to  the  illegality  of  the  bonds  is -an  averment  in 
the  bill  that  they  were  illegally  issued,  and  that  they  were, 
in  fact,  never  issued  by  the  township  by  which  they  purport 
to  be  issued,  it  is  not  error  to  refuse  a  preliminary  injunc- 
tion, since  the  court  can  not  be  fully  advised  as  to  the  il- 
legality of  the  bonds  upon  so  general  an  averment  and  with- 
out further  evidence.^^  Nor  will  the  collection  of  a  tax  for 
the  payment  of  warrants  issued  for  an  indebtedness  against 
.a  county  be  enjoined  upon  the  ground  of  the  illegality  of 
such  warrants,  when  the  holders  of  the  warrants  are  not  parties 
to  the  suit.^^ 

§  558.  Debt  due  from  city  can  not  be  set  off  against  tax. 
Equity  will  not  enjoin  a  municipal  corporation  from  collecting 
taxes  due  from  a  citizen  who  occupies  the  relation  of  creditor 
toward  the  corporation  until  the  debt  due  to  the  taxpayer 
from  the  municipality  is  paid,  since  the  courts  will  not  permit 

ni  Newton       County        Draining  Cook   v.   City  of  Racine,   49   Wis., 

-Company  v.  Nofsinger,  43  Ind.,  566.  243.     See,  ante,  §  551. 

i):i  Tingue     v.     Village     of     Port  i"  Olmstead  v.  Koester,  14  Kan., 

Chester,  101  N.  Y.,  294,  4  N.  E.  625.  463. 

i»:i  Barker  v.  City  of  Omaha,   16  i>">  Beck  r.  Allen,  58  Miss.,   143. 
Neb.,  269,  20  N.  W.,  382.  See  also 


CHAP.  VIII.]  AGAINST  TAXES.  53;^ 

a  debt  to  be  thus  set  off  against  a  tax  due  from  the  citizen. 
And  the  reason  for  the  rule  is  found  in  the  fact  that  a  tax 
due  from  a  taxpayer  is  not  a  mere  debt  or  matter  of  contract 
in  the  ordinary  understanding  of  the  term,  but  rather  a  pub- 
lic burden  in  the  nature  of  an  obligation  due  from  the  citi- 
zen for  the  support  of  the  government,  and  to  permit  a  tax  to 
be  thus  subjected  to  the  doctrine  of  set-off  would  necessariljf 
be  subversive  of  the  power  of  government. ^'^ 

§  559.  Effect  of  injunction  against  paying  interest  on 
municipal  bonds.  A  preliminary  injunction  granted  against 
county  officers  to  restrain  them  from  paying  any  interest  upon 
certain  bonds  or  obligations  of  the  county  does  not  have  the 
effect  of  rendering  invalid  a  tax  levied  to  pay  the  interest 
upon  such  bonds.  Such  an  injunction  will  not,  therefore,, 
operate  to  prevent  the  proper  officers  of  the  county  from  col- 
lecting the  tax  already  levied.^''' 

§  560.  Advertising  for  bids.  Although  a  city  charter  pro- 
vides that  no  contracts  beyond  a  certain  sum  shall  be  entered 
into  by  the  city  except  with  the  lowest  bidder,  after  advertis- 
ing, an  injunction  will  not  lie  at  the  suit  of  adjacent  lot  own- 
ers to  restrain  the  enforcement  of  a  tax  for  paving  streets: 
with  a  patented  pavement  which  is  the  exclusive  property  of 
one  firm.^^  Nor  will  the  fact  that  the  city  authorities  have- 
not  complied  with  their  charter  in  ordering  street  improvements 
and  in  advertising  for  bids  warrant  an  injunction  in  favor  of 
an  adjacent  lot  owne?  before  any  taxes  have  been  assessed 
or  levied,  or  any  injuries  sustained.^'-*  Where,  however,  an 
assessment  is  imposed  for  street  improvements,  and,  in  dis- 
regard of  an  ordinance  requiring  advertisement  for  proposals, 

06  Finnegan   r.    City   of   Fernan-  or,   33   N.   Y.,   309.     And   see   dis- 

dina,  15  Fla.,  379;  Scobey  v.  Deca-  senting  opinion  of  Dixon,  C.  J.,  iu 

tur  County,  72  Ind.,  551.  Dean  v.  Charlton,  23  Wis.,  590.  But 

OT  L.  L.  &  G.  R.  Co.  V.  Clemmans,  see,   contra.   Dean  r.   Charlton,   23. 

14  Kan.,  82.  Wis.,  590. 

38  Hobart  i\  Detroit,    17    Mich.,         oo  Ballard   v.   Appleton,  26   Wis. 

246;  Harlem  Gas  Light  Co.  v.  May-  67. 


534  INJUXCTIOXS. 


CIIAl'.   VIII. 


in  three  newspapers,  advertisement  is  had  in  but  one,  a  tax- 
payer is  entitled  to  relief  by  injunction,  in  the  absence  of  any 
remedy  by  appeal  from  the  action  of  the  municipal  authorities.^ 
§  560  a.  Fraud  as  ground  for  relief.  Fraudulent  conduct 
upon  the  part  of  municipal  authorities  whereby  the  property 
owner  is  deprived  of  substantial  rights  in  the  matter  of  special 
assessments  constitutes  ground  for  equitable  relief  against  the 
enforcement  of  the  assessment.  Where,  therefore,  the  prop- 
erty owner  is  induced  by  agreement  with  the  city  authorities 
to  withdraw  his  objections  to  the  confirmation  of  an  assess- 
ment, the  enforcement  of  the  judgment  of  confirmation  con- 
trary to  such  agreement  will  be  enjoined.- 

§  560  h.  Irregularities  in  organization  of  municipal  corpora- 
tion no  ground  for  injunction.  Defects  or  irregularities  in  the 
organization  of  a  municipal  corporation  constitute  no  ground 
for  equitable  interference  against  the  enforcement  of  taxes  or 
assessments  imposed  by  it.  The  rule  is  founded  upon  the  neces- 
sity of  avoiding  the  intolerable  conditions  which  would  result 
if  the  validity  of  a  tax  could  be  successfully  impeached  upon 
fiuch  grounds.  Where,  therefore,  the  corporation  has  a  de 
facto  existence  and  the  tax  is  otherwise  a  valid  charge  against 
the  taxpayer  and  his  property,  the  legality  of  the  corporate 
organization  can  not  thus  be  collaterally  attacked  and  the  re- 
lief will  accordingly  be  denied.^ 

1  Mayor  v.  Johnson,  62  Md.,  225.        s  Burnham  v.  Rogers,   167    Mo. 

2  Dempster   v.   Chicago,   175   111.,     17,  66  S.  W.,  970. 
278,  51  N.  E.,  710. 


CHAP.  Vlll.J  AGAINST  TAXES.  535 


V.     Municipal-Aid  Taxes. 

§  561.  Illegal  aid  tax  enjoined;   illustrations. 

562.  Illegality  of  election. 

563.  Fraud  and  mistake. 

564.  Acquiescence  of  taxpayer  an  estoppel. 

565.  Regularity  of  election. 

566.  Consolidation  of  railroads;  insolvency  of  company;  sale  of  road. 

567.  Disqualification  of  municipal  ofBcers  no  ground  for  injunction. 

568.  Valid  defense  to  bonds  must  be  shown. 

569.  Injunction   will  not  be  allowed  when  bonds  are  legal;   other- 

wise when  bonds  void. 

§561.  Illegal  aid  tax  enjoined;  illustrations.  The  question 
of  municipal  aid  to  public  enterprises  of  various  kinds,  espe- 
cially in  the  construction  of  railways,  has  given  rise  to  fre- 
quent applications  for  preventive  relief  in  equity.  The  gen- 
eral subject  of  the  nature  and  extent  of  relief  by  injunction 
against  municipal-aid  subscriptions  is  fully  discussed  in  another 
part  of  this  treatise,^  and  it  is  only  proposed  here  to  present 
such  principles  as  govern  the  courts  in  determining  appli- 
cations for  relief  by  injunction  against  taxation  imposed  in 
furtherance  of  such  subscriptions.  And  it  may  be  asserted 
as  a  general  doctrine  applicable  to  all  cases  where  it  is  sought 
to  enjoin  the  levying  or  collection  of  taxes  in  payment  of  sub- 
scriptions or  donations  made  by  a  municipal  =  corporation  in 
aid  of  the  construction  of  railways,  or  other  kindred  enter- 
prises, that  in  the  absence  of  some  valid  and  constitutional 
expression  of  the  legislative  power  authorizing  such  subscrip- 
tion, and  the  necessary  taxation  with  which  to  meet  it,  the 
taxpayer  may  properly  invoke  the  aid  of  equity  by  injunc- 
tion in  his  behalf.-    Thus,  a  taxpayer  may  enjoin  the  collection 

J  See  §   1282,  post,  et  seq.  houn,  100  111.,  392;  Hays  v.  Dowis, 

2  Flack   V.   Hughes,   67   111.,   384;  75  Mo.,  250.    But  see,  contra.  State 

Foster   v.   Kenosha,    12   Wis.,   616;  v.  Parkville,  32  Mo.,  496,  where  it 

Supervisors    of    Livingston    Co.    v.  is  held  that  the  issuing  of  bonds 

Weider,    64    111.,    427;    Marshall    v.  and  the  levying  and  collecting  of  a 

Silliman,  61  111.,  218;   Rutz  l:  Cal-  tax,   in   aid    of   subscriptions   to   a 


536  INJUXCTIOXS.  [CIIAP.  VIII. 

of  a  tax  levied  upon  his  property  for  the  payment  of  interest 
on  bonds  of  the  township  issued  pursuant  to  a  vote  of  the  citi- 
zens in  aid  of  a  subscription  to  a  railway  company,  in  the 
absence  of  any  law  authorizing  such  election  or  vote.^  And 
where  a  city  attempts  under  a  provision  in  its  charter  to  levy 
a  tax  in  payment  of  a  subscription  to  the  capital  stock  of  a 
railway  company,  it  is  proper  to  enjoin  the  enforcement  of 
the  tax  upon  the  ground  that  the  provision  of  the  charter  under 
Avhich  the  proceedings  were  had  is  unconstitutional,  and  the 
tax,  therefore,  unauthorized.^  So  where  the  legislature  of 
the  state  has  exceeded  its  authority  under  the  constitution  in 
attempting  to  authorize  subscriptions  by  a  county  in  aid  of 
the  location  of  a  state  reform  school,  and  a  tax  has  been 
levied  by  such  board  and  collected  for  the  payment  of  in- 
terest upon  bonds  of  the  county  subscribed  in  aid  of  the  under- 
taking, the  county  treasurer  may  be  enjoined  from  applying- 
the  taxes  thus  collected  in  payment  of  the  interest  upon  suck 
bonds.^  And  where  a  township  votes  in  favor  of  a  subscrip- 
tion to  a  railway  company  in  excess  of  the  amount  authorized 
by  law  to  be  voted,  and  it  is  sought  to  cure  the  illegality  by 
an  act  of  legislature  attempting  to  legalize  such  election,  but 

railroad  by  a  county  court,  will  in  disregard  of  the  state  law  in 
not  be  enjoined  on  the  ground  of  levying  the  tax,  although  they  are 
want  of  jurisdiction  in  the  court  commanded  so  to  do  by  the  federal 
to  take  such  proceeding  without  a  court,  since  they  must  conform  to 
vote  of  the  people,  since  a  sale  of  the  statute  as  to  the  method  of 
the  taxpayer's  property  under  imposing  the  tax.  State  v.  Hager, 
such  proceedings  would  not  divest  91  Mo.,  452.  But  see  Gaines  v. 
the  owner  of  his  title,  and  he  could  Springer,  46  Ark.,  502,  where  it  is 
maintain  an  action  at  law  for  the  held  that  a  state  court  will  not  en- 
property,  and  for  damages  for  its  join  the  collection  of  a  tax  which 
detention.  But  it  is  also  held  in  is  levied  pursuant  to  a  mandamus 
Missouri  that  an  injunction  will  granted  by  a  federal  court  to  corn- 
lie,  at  the  suit  of  the  state,  to  pel  the  payment  of  a  judgment 
restrain  county  officers  from  levy-  against  a  county. 
Ing  a  tax  in  payment  of  judg-  3  Flack  r.  Hughes,  67  111.,  384. 
ments  rendered  by  a  United  States  *  Foster  r.  Kenosha,  12  Wis.,  616. 
court  upon  municipal-aid  coupons,  '■  Supervisors  of  Livingston  Co. 
when  such  officers  are  proceeding  t).  Welder,  64  111.,  427. 


CHAP.  VIII.]  AGAINST  TAXES.  53T 

the  curative  act  itself  is  held  to  be  unconstitutional,  a  court 
of  equity  may  enjoin  the  collection  of  a  tax  to  pay  interest 
upon  bonds  of  the  township  issued  upon  such  void  subscrip- 
tion.*^ 

§  562.  Illegality  of  election.  It  is  also  a  noticeable  feature 
of  the  subject  under  consideration,  that  the  courts  are  usually 
inclined  to  hold  municipalities  to  a  strict  adherence  to  the  con- 
ditions required  by  the  law  under  which  the  municipal  aid 
is  voted,  and  a  want  of  compliance  with  some  substantial  re- 
quirement of  the  law  as  regards  the  notice  of  the  election  or 
the  manner  of  submitting  the  proposition  to  the  electors  will 
warrant  relief  by  injunction  against  a  tax  levied  in  aid  of  such 
subscription.'^  For  example,  a  failure  to  give  notice,  as  re- 
quired by  law,  of  the  holding  of  an  election  to  vote  upon  a 
proposition  to  subscribe  to  the  capital  stock  of  a  plank-road 
company,  constitutes  sufficient  ground  for  enjoining  the  collec- 
tion of  a  tax  levied  in  aid  of  a  subscription  by  the  township 
to  such  stock.^  So  where  a  statute  authorizes  a  municipal 
subscription  in  aid  of  a  railway  upon  a  vote  of  the  citizens, 
but  the  vote  is  submitted  by  the  county  authorities  to  the 
people  upon  a  proposition  to  appropriate  an  entire  sum  to  two 
different  railways,  instead  of  a  proposition  to  appropriate  to 
each  road  separately,  a  tax  levied  in  pursuance  of  such  vote 
being  regarded  as  illegal  and  void,  its  collection  may  be  en- 
joined.*^ And  the  fact  that  the  board  of  county  commissioners, 
have  declared  the  result  of  the  election  to  be  in  favor  of  the 
subscription  does  not  oust  the  jurisdiction  of  equity,  or  pre- 

c  Marshall  v.    Silliman,    61    111.,  2  S.  E.,  361.     See  also  Garrigus  v.^ 

218.  Commissioners   of   Parke     Co.,    39 

'  Bronenberg  r.  Commissioners  Ind.,  66. 
of  Madison  Co.,  41  Ind.,  502;  Fin-  «  McPike  v.  Pen,  51  Mo.,  63. 
ney  i:.  Lamb,  54  Ind.,  1;  McPike  o  Bronenberg  v.  Commissioners 
V.  Pen,  51  Mo.,  63;  McDowell  v.  of  Madison  Co.,  41  Ind.,  502;  Fin- 
Massachusetts  &  S.  C.  Co.,  96  N.  ney  r.  Lamb,  54  Ind.,  1.  See  also 
C,  514,  2  S.  E.,  351;  Gofor'.h  r.  Garrigus  v.  Commissioners  of 
Rutherford  R.  C.  Co.,  96  N.  C,  535,  Parke   Co.,   39   Ind.,   66. 


538  INJUXCTIOXS.  [chap.  VIII. 

vent  the  court  from  inquiring  into  the  legality  and  regularity 
3f  the  election.^*' 

§  563.  Fraud  and  mistake.  The  jurisdiction  of  equity  by  in- 
junction in  the  class  of  cases  under  consideration  may  also 
be  exercised  upon  the  ground  of  fraud,  that  being  a  favorite 
ground  of  equitable  jurisdiction.  Thus,  fraudulent  represen- 
tations made  by  a  railway  company  to  the  electors  of  a  town- 
ship, for  the  purpose  of  inducing  them  to  vote  a  tax  in  aid  of 
the  construction  of  a  railroad,  afford  sufficient  reason  for  an- 
joining  the  collection  of  the  tax.^i  j^^^  [j^  g^^^j^  ^^gg^  ^j^g 
fact  that  the  railway  company  has  expended  labor  and  money 
upon  the  construction  of  its  road  will  not  estop  taxpayers 
from  relief  in  equity  upon  the  ground  of  such  fraudulent  rep- 
resentations, when  the  fraud  was  not  discovered  until  after  the 
work  was  performed.^-  The  relief  may  also  be  allowed  upon 
the  ground  of  mistake ;  and  when  the  question  of  a  tax  in  aid 
of  a  railway  has  been  submitted  to  a  vote  of  the  citizens  of 
a  town,  but  the  tax  is  not  voted  and  the  judges  of  the  elec- 
tion so  declare,  but  by  mistake  of  their  clerk  the  vote  is  cer- 
tified to  the  county  authorities  as  in  favor  of  the  tax,  its  col- 
lection may  be  enjoined.^  ^ 

§  564.  Acquiescence  of  taxpayer  an  estoppel.  A  taxpayer 
may,  however,  be  estopped  by  his  own  conduct  from  obtaining 
relief  by  injunction  against  the  collection  of  a  tax  levied  in 
aid  of  a  municipal  subscription  or  donation.  Thus,  where  a 
municipal  tax  is  voted  in  aid  of  a  railway,  and  the  work  of 
constructing  the  road  is  completed  upon  the  faith  of  the  tax 
thus  voted,  a  taxpayer  who  has  remained  silent  until  all  the 
benefits  which  would  accrue  to  him  by  the  construction  of 
the  road  are  secured  will  not  then  be  permitted  to  enjoin  the 
collection  of  the  tax.'* 

">  McDowell   V.   Massachusetts  &  ^  Sinnett  v.  Moles,  38  Iowa,  25. 

S.    C.    Co.,   96   N.   C,   514,   2   S.   E.,  'Md. 

351;    Goforth  v.   Rutherford   R.   C.  i:' Cat  tell  v.  Lowry,  45  Iowa,  478. 

Co.,  96  N.  C,  535,  2  S.  E.,  361.  n  Lamb  v.  B.,  C.  R.  &  M.  R.  Co., 


CHAP.  VIII.]  AGAINST  TAXES.  539 

§  565.  Regularity  of  election.  An  injunction  has  been  re- 
fused against  the  enforcement  of  a  tax  levied  for  the  pay- 
ment of  a  municipal  subscription  in  aid  of  the  construction 
of  a  railroad  bridge,  when  the  election  to  take  the  sense  of  the 
voters  had  been  properly  held  and  they  had  voted  the  subscrip- 
tion.^'^ And  where  a  statute  authorized  the  question  of  taxa- 
tion in  aid  of  railway  enterprises  to  be  submitted  to  a  vote 
of  a  town,  upon  presentation  to  the  trustees  of  the  town  of  a 
petition  signed  by  one-third  of  the  resident  taxpayers,  but 
the  bill  to  restrain  the  enforcement  of  the  tax  only  alleged 
that  no  petition  was  signed  by  one-third  of  the  taxpayers, 
being  silent  as  to  the  question  of  their  residence,  it  was  held 
that  no  sufficient  ground  for  an  injunction  was  shown.^^  And 
in  Indiana  it  is  held  that  when  the  law  authorizes  the  munici- 
pal aid  to  be  given  by  a  board  of  county  officers,  upon  the 
petition  of  a  given  number  of  freeholders,  the  action  of  such 
board  in  passing  upon  the  sufficiency  of  the  petition  can  be 
challenged  only  directly  by  appeal,  and  can  not  be  called  in 
question  collaterally  in  a  suit  to  enjoin  a  tax  levied  for  pay- 
ment of  the  subscription.^'^ 

§566.  Consolidation  of  railroads;  insolvency  of  company; 
sale  of  road.  When  municipal  bonds  have  been  issued  under 
authority  conferred  by  statute,  as  a  donation  from  a  city  in 
aid  of  a  railway  company,  and  have  passed  into  the  hands  of 
innocent  purchasers,  equity  will  not  enjoin  a  tax  levied  to 
meet  the  interest  upon  the  bonds  merely  because  of  the  con- 
solidation of  the  railroad  to  which  the  aid  was  granted  with 
another  road,  such  consolidation  being  within  the  corporate 
power,  and  no  irregularity  being  shown  therein.^^    Nor  will  the 

39    Iowa,    333.      And   see    Commis-  359;    S.   C.   sul)   nom.  Reynolds   /". 

sioners  v.  Hinchman,  31  Kan.,  729,  Faris,  80  Ind.,  14;   Board  of  Com- 

3  Pac,  504.  missioners    r.    Hall,    70    Ind.,    469. 

15  Harcourt  v.  Good,  39  Tex.,  455.  And  see  Goddard  v.  Stockm?.n,  74 

16  Zorger  v.  Township  of  Rapids,  Ind.,   400. 

36  Iowa,  175.  I's  City  of  Mount  Vernon  r.  Hov- 

17  Faris    v.    Reynolds,    70    Ind.,     ey,  52  Ind.,  563. 


540  INJUNCTIONS.  [CHAr.  VIII. 

relief  be  granted  because  of  the  insolveuey  of  the  railway  com- 
pany and  its  alleged  inability  to  complete  its  road.^'^  But  the 
writ  has  been  granted  to  restrain  the  collection  of  a  tax  voted 
in  aid  of  a  railway  which  has  transferred  its  property  to 
another  company,  although  it  was  known  that  such  transfer 
was  contemplated  when  the  tax  was  voted.^^ 

§  567.  Disqualification  of  municipal  officers  no  ground  for 
injunction.  Upon  a  bill  to  enjoin  the  collection  of  a  tax  levied 
by  municipal  authorities  for  the  payment  of  principal  and 
interest  upon  bonds  issued  pursuant  to  legislative  authority 
in  aid  of  the  construction  of  a  railroad,  the  fact  that  cer- 
tain members  of  the  municipal  government  issuing  the  bonds 
were  disqualified  from  holding  office  afi'ords  no  ground  for 
extending  equitable  relief;  since  the  acts  of  such  officers  are 
to  be  regarded  as  those  of  officers  de  facto,  and  therefore  valid 
and  binding  until  their  title  to  the  office  is  adjudged  invalid.^i 

§  568.  Valid  defense  to  bonds  must  be  shown.  Equity  will 
not  interfere  to  restrain  the  collection  of  a  tax  for  the  pay- 
ment of  bonds  issued  by  a  city  in  aid  of  a  railway,  when  it 
is  not  shown  that  the  city  has  a  valid  legal  defense  to  the 
bonds  in  the  hands  of  the  present  holders.^-  And  although 
the  case  presented  might  be  sufficient  to  warrant  an  injunc- 
tion against  issuing  the  bonds  if  not  already  issued,  it  does 
not  necessarily  follow  that  the  relief  will  be  awarded  by  re- 
straining the  collection  of  taxes  for  their  payment  after  they 
have  been  put  in  circulation.-^ 

§  569.  Injunction  will  not  be  allowed  when  bonds  are  legal ; 
otherwise  when  bonds  void.  Where  railroad  bonds  have  been 
subscribed  and  issued  under  an  act  of  legislature  which  is 
constitutional,  and  the  conditions  of  the  act  have  been  fully 

IS  Wilson  V.  Board  of  Commis-  -^i  Lockhart  i\  City  of  Troy,  4S 
sioners,  68  Ind.,  GOT.  Ala.,  579. 

2"  Blunt  V.  Carpenter,  G8  Iowa,  -'-  Wilkinson  v.  City  of  Peru,  61 
265,  26  N.  W.,  483.  Ind.,  1. 

23  Id. 


•CHAP.  VIII.]  AGAINST  TAXES.  541 

complied  with,  and  the  bonds  have  been  issued  and  have 
passed  into  the  hands  of  bona  fide  holders  for  value,  a  court 
of  equity  will  not  enjoin  the  municipal  authorities  from  rais- 
ing the  necessary  funds  by  taxation  for  the  payment  of  in- 
terest upon  such  bonds.-*  And  when  a  judgment  establish- 
ing the  validity  of  the  bonds  has  been  obtained  against  the 
municipality  and  taxes  have  been  levied  for  the  payment  of 
interest,  such  judgment  will  be  held  conclusive  upon  taxpay- 
ers, and  they  will  not  be  permitted  to  enjoin  the  collection 
of  the  tax.25  If^  however,  the  bonds  are  totally  void,  as  where 
issued  by  a  supposed  municipality  which  had  no  corporate 
existence  either  de  jure  or  de  facto,  a  taxpayer  may  restrain 
the  enforcement  of  a  tax  levied  for  the  purpose  of  paying  the 
principal  and  interest  of  such  obligations.-'^ 

24  Cumines     v.     Supervisors,     63        26  Morton  v.  Carlin,  51  Neb.,  202, 
Barb.,  287.  70  N.  W.,  966. 

25  Commissioners    v.   Hinchman, 
31  Kan.,  729. 


542  INJUNCTIONS.  [chap.  VIII. 

VI.     Bounties. 

§  570.     Bounties   to   soldiers   unauthorized   by   legislature  will   be  en- 
joined. 

571.  Statute  must  be  strictly  complied  with. 

572.  Parties;  dissolution. 

§  570.  Bounties  to  soldiers  unauthorized  by  legislature  will 
be  enjoined.  A  branch  of  the  jurisdiction  of  equity  in  re- 
straint of  taxes  of  modern  origin  is  that  which  is  exercised  in 
eases  of  taxation  for  the  payment  of  bounties  to  soldiers,  or 
for  the  purpose  of  freeing  a  town  or  city  from  a  draft  of  its 
citizens  for  military  service.  The  general  rule  as  regards  mu- 
nicipal taxes  for  such  purposes  is,  that  where  the  municipal 
authorities  are  proceeding  without  legislative  sanction,  an  in- 
junction wall  be  allowed  to  restrain  such  misappropriation  of 
the  public  funds.^  The  ground  for  relief  in  this  class  of  cases 
is  that  the  remedy  at  law  by  suit  to  recover  back  the  tax 
paid  is  inadequate.^  Where,  however,  a  town  is  authorized  by 
act  of  legislature  to  levy  a  tax  for  relieving  its  inhabitants 
from  draft,  the  collection  of  the  tax  will  not  be  enjoined,  but 
the  persons  aggrieved  will  be  left  to  pursue  their  remedy  at 
law.^  Even  where  a  town  originally  had  no  authorit}'  to  vote 
such  a  tax,  if  a  subsequent  act  of  the  legislature  has  author- 
ized it  to  ratify  and  confirm  such  vote,  and  this  has  been  done, 
an  injunction  will  not  be  allowed.-* 

§  571.  Statute  must  be  strictly  complied  with.  But,  al- 
though equity  Avill  not  interfere  with  a  bounty  tax  authorized 
by  act  of  legislature,  yet  the  terms  of  the  statute  must  be 

1  Webster       v.      Harwinton,     32  •'  Hoagland  v.  Delaware,  2  C.  E. 

Conn.,  131;   New  London  v.  Brain-  Green,  106. 

ard,  22  Conn.,  552;    Fiske  r.  Haz-  ^  Baldwin  r.  North  Branford,  32 

ard,  7  R.  I.,  438;  Drake  r.  Phillips,  Conn.,  47;   Booth  r.  Woodbury,  lb., 

40  111.,  388.  But  see,  contra,  Trues-  118.     And  see  as  to  dissolution  of 

dell's  Appeal,  58  Pa.  St.,  148.  the  injunction   under  such   a  stat- 

-  Webster      v.      Harwinton,      32  ute,     Bartholomew    v.    Harwinton, 

Conn.,  1.31.  33  Conn.,  408. 


CHAP.  Vlll.]  AGAINST  TAXES.  543 

complied  with  in  all  essential  points.  And  where  a  tax  is  voted 
the  next  day  after  the  passage  of  the  act  authorizing  it 
and  before  the  requisite  notice  prescribed  by  the  statute  could 
possibly  be  given,  such  a  notice  being  indispensable  to  the 
validity  of  the  tax,  its  collection  will  be  enjoined.^  And  where 
the  quota  of  the  town  is  already  filled  at  the  time  of  the  pass- 
age of  the  law,  and  there  is  no  reasonable  probability  of  more 
soldiers  being  required,  such  a  tax  is  unauthorized  and  will 
be  restrained.*^  So  where  by  the  terms  of  a  city  charter  the 
real  estate  and  personal  property  of  its  inhabitants  are  ex- 
empt from  taxation  for  county  purposes,  a  bill  in  chancery 
lies  to  enjoin  the  collection  of  a  bounty  tax  sought  to  be 
imposed  by  the  county,  even  though  the  tax  be  authorized  by 
the  act  of  legislature.''' 

§572,  Parties;  dissolution.  It  is  held  that  an  illegal  tax 
for  bounty  purposes  will  not  be  restrained  where  the  complain- 
ant files  the  bill  only  in  his  individual  behalf,  and  where  it 
does  not  appear  that  he  has  not  an  adequate  remedy  at  law,  or 
that  the  proceedings  will  be  productive  of  irreparable  injury, 
or  will  lead  to  a  multiplicity  of  suits,  or  a  cloud  upon  title. ^ 
And  a  perpetual  injunction  granted  against  the  payment  of 
a  bounty  voted  by  a  town  meeting  to  drafted  men  or  their 
substitutes  may  be  dissolved  upon  the  passage  of  an  act  of 
legislature  legalizing  such  vote."  And  in  the  absence  of  any 
allegation  of  fraud  the  collection  of  a  tax  in  payment  of  a 
bounty  for  the  destruction  of  wolves  will  not  be  restrained, 
where  such  bounty  has  been  authorized  by  the  legislature  and 
by  vote  of  the  town.^*^ 

5  Vieley  v.  Thompson,  44  111.,  9.  »  Bartholomew  t\  Harwinton,  33 

6  Id.  Conn.,  408. 

7  Supervisors  v.  Campbell,  42  lo  Mooers  v.  Smedley,  6  Johns. 
111.,  490.  Ch.,  28. 

8  Scribner  v,  Allen,  12  Minn.,  148. 


544  INJUNCTIONS.  [chap.  VIII, 


VII.     Parties. 

§  573.  General  principles  governing  joinder  of  parties. 

574.  Different  taxpayers  may  unite  as  plaintiffs. 

575.  The  doctrine  further  discussed. 

576.  Rule  as  to  joinder  of  defendants. 

577.  Railroad   tax,   different   counties  joined;    school    district;    pre- 

tended corporation. 
577a.  Holder   of    corporate   bonds,   secured   by   mortgage,   when   not 
proper  party  complainant. 

§  573.  General  principles  governing  joinder  of  parties.  The 
question  of  who  arc  proper  parties  plaintiff  and  defendant  in 
an  action  to  restrain  the  enforcement  or  collection  of  a  tax  is 
one  of  much  practical  importance,  since  in  a  case  otherwise 
proper  for  equitable  relief  the  court  will  refuse  to  interfere  un- 
less the  proper  parties  are  before  it.  It  may  be  said,  generally, 
that  one  who  does  not  own  real  estate  which  it  is  sought  to  sub- 
ject to  a  tax,  and  who  is  not,  therefore,  liable  to  the  tax,  will 
not  be  allowed  the  aid  of  an  injunction  to  prevent  its  enforce- 
ment.^ And  an  action  to  enjoin  a  tax  should  be  brought  by 
the  taxpayers  themselves  who  are  affected  by  it,  and  a  town- 
ship can  not  maintain  a  bill  for  an  injunction  against  the  col- 
lection of  taxes  levied  upon  property  of  individual  citizens  of 
such  township.2  So  an  incorporated  board  of  education  can 
not  maintain  a  bill  to  enjoin  the  collection  of  illegal  taxes 
levied  for  school  purposes.^  Nor  can  a  city  which  has  no  prop- 
erty which  is  subject  to  an  illegal  tax  join  in  a  bill  brought 
hy  taxpayers  to  enjoin  its  collection.-*  So  equity  will  not 
entertain  an  action  by  a  municipal  corporation  to  test  the  legal- 
ity of  a  tax  levied  by  another  municipality  by  enjoining  its 
collection,  relief  by  injunction  against  illegal  taxes  being  ex- 

1  McMahon  v.   Welsh,  11    Kan.,         -^  Board  of  Education  r.  Guy,  64 
280.  Ohio  St.,  434,  60  N.  E.,  573. 

2  Center   Township   v.  Hunt,    16         +  Stiles   v.    City     of    Guthrie,    3 
Kan.,  430.  Okla.,  26,  41  Pac,  383. 


CHAP.  VIII.]  AGAIXST  TAXES.  545 

tended  only  in  behalf  of  taxpayers.^  Nor  can  a  state  maintain 
an  action  to  restrain  the  collection  of  a  tax  levied  for  the 
payment  of  municipal  bonds,  upon  the  ground  that  the  bonds 
are  illegal  and  ultra  vires  on  the  part  of  the  municipality 
issuing  them;  since  the  state  as  such  has  no  direct  interest  in 
the  matter.^  And  when  a  tax  is  illegally  assessed  upon  prop- 
erty beyond  the  boundaries  of  the  municipality  making  the 
assessment,  the  state  is  not  a  proper  party  plaintiff  to  seek 
relief  by  injunction,  but  the  taxpayers  aggrieved  will  be  left 
to  pursue  their  remedy  in  their  own  behalf."^  So  after  the 
death  of  the  plaintiff  in  a  suit  brought  to  restrain  the  sale  of 
land  for  taxes,  his  personal  representative,  having,  as  such, 
no  interest  in  the  subject-matter  of  the  litigation,  can  not  main- 
tain the  action.^  The  governing  rule,  therefore,  resting  alike 
upon  principle  and  authority,  is  that  the  action  to  enjoin  the 
collection  of  a  tax  should  be  brought  by  a  taxpayer  whose 
property  and  interests  are  directly  and  immediately  affected 
by  the  tax  which  it  is  sought  to  enjoin,  the  same  degree  of 
interest  being  requisite  as  in  all  other  cases  where  the  ex- 
traordinary aid  of  equity  by  injunction  is  invoked. 

§  574.  Different  taxpayers  may  unite  as  plaintiffs.  While 
there  is  not  wanting  authority  to  the  eft'ect  that  individual 
taxpayers  whose  property  is  separately  assessed  do  not  have 
such  a  community  of  interest  as  to  render  it  proper  to  join 
them  as  complainants,  even  upon  the  ground  of  preventing  a 
multiplicity  of  suits,^  the  decided  weight  of  authority  is  clearly 
averse  to  this  doctrine.  And  it  may  be  asserted  as  a  general 
rule  governing  the  joinder  of  parties  complainant  in  this  class 
of  actions,  that  different  property  owners  and  taxpayers, 
having  separate  and  distinct  interests  as  regards  the  owner- 
ship of  property  subjected  to  the  burden  of  a  common  tax,  but 

5  Nunda  v.  Chrystal  Lake,  79  111.,  ^  Ewlng  v.  Board  of  Education, 
311.  72  Mo.,  436. 

6  State  V.  McLaughlin,  15  Kan.,  s  Driver  v.  Hays,  51  Ark.,  82,  9 
228.  S.  W.,  853. 

9  Harkness   v.   Board   of    Public 
35 


546 


INJUNCTIONS. 


[chap.  VIII. 


suing  for  themselves  and  all  others  similarly  interested,  may 
unite  in  an  action  to  obtain  relief  by  injunction  against  the 
collection  of  such  tax;  since,  although  their  titles  are  several 
and  distinct,  they  nevertheless  have  such  a  common  interest 
in  the  subject-matter  of  the  litigation  as  to  render  them  proper 
co-plaintiffs  in  a  proceeding  to  obtain  relief  from  the  burden 
common  to  them  all.^^  And  where  an  assessment  or  tax  is 
affected  by  such  illegalities  as  to  justify  a  court  of  equity  in 
extending  preventive  relief  by  injunction,  different  property 
holders  and  taxpayers  who  are  subjected  to  the  burden  of 
such  illegal  tax  may  bring  their  action  for  relief  in  behalf  of 
themselves  and  of  all  others  similarly  situated,  and  whose  as- 
sessments remain  unpaid.^  ^  So  where  an  assessment  levied 
for  the  construction  of  public  roads  is  void  as  to  all  owners 
of  property  affected  thereby,  it  is  competent  for  different  own- 
ers in  severalty  to  join  in  an  action  for  an  injunction.^-    And 


Works,  1  McArthur,  121;  Lewis  v. 
Eshleman,  57  Iowa,  633,  11  N.  W., 
617.  See  also  Hudson  v.  Commis- 
sioners of  Atchison  Co.,  12  Kan., 
140,  where  it  is  held  that  different 
persons  holding  shares  of  stock 
severally  in  an  incorporated  com- 
pany, with  no  joint  interest,  can 
not  unite  in  an  action  to  enjoin 
the  collection  of  an  alleged  illegal 
tax  upon  such  shares,  but  must 
sever  in  the  action. 

10  Bristol  v.  Johnson,  34  Mich., 
123;  Carlton  v.  Newman,  77  Me., 
408,  1  Atl.,  194;  Wood  v.  Draper, 
24  Barb.,  187;  S.  C,  4  Ab.  Pr.,  322; 
McClung  V.  Livesay,  7  West  Va., 
329;  Brandirff  ??.  Harrison  Co.,  50 
Iowa,  164;  Robbins  r.  Sand  Creek 
Turnpike  Co.,  34  Ind.,  461;  Green- 
castle  &  Bowling  Green  Turnpike 
Co.  V.  Albin,  34  Ind.,  554;  Forgey 
V.  Northern  Gravel  Road  Co.,  37 
Ind..  118;  Kennedy  r.  City  of  Troy, 


14  Hun,  308;  Glenn  v.  Waddel,  23 
Ohio  St.,  605.  See  also  Scofleld 
V.  City  of  Lansing,  17  Mich.,  437; 
Morris  v.  Cummings,  91  Tex.,  618, 
45  S.  W.,  383;  Stiles  v.  City  of 
Guthrie,  3  Okla.,  26,  41  Pac,  383. 

n  Kennedy  v.  City  of  Troy,  14 
Hun,  308;  Wood  v.  Draper,  24 
Barb.,  187;  S.  C,  4  Ab.  Pr.,  322; 
McClung  V.  Livesay,  7  West  Va., 
329;  Carlton  v.  Newman,  77  Me., 
408,  1  Atl.,  194,  The  action  should 
be  brought  by  complainants  as  tax- 
payers suing  for  themselves  and 
all  others  similarly  situated,  and 
it  is  held  that  it  can  not  be  main- 
tained unless  so  brought.  Williams 
V.  County  Court,  26  West  Va.,  488. 
But  see  Supervisors  of  DuPage  Co. 
V.  Jenks,  65  111.,  275;  Bridge  Com- 
pany V.  Commissioners  of  Wyan- 
dotte Co.,  10  Kan.,  326. 

li!  Robbins  v.  Sand  Creek  Turn- 
pike Co.,  34  Ind.,  461;  Greencastle 


CUAP.  VIII.]  AGAINST  TAXES.  547 

different  taxpayers  whose  lands  are  illegally  assessed  may 
unite  in  a  proceeding  for  an  injunction,  when  the  rights  of 
all  are  dependent  upon  the  same  question.*^  And  where  a 
tax,  if  levied  and  extended,  will  be  illegal  and  void,  a  single 
taxpayer  may  have  relief  against  the  entire  tax.  And  in 
such  case  it  is  not  necessary  that  the  plaintiff  should  in  ex- 
press terms  purport  to  be  acting  upon  behalf  of  all  other  tax- 
payers having  individual  interests  of  the  same  character  if 
such  is  the  necessary  effect  of  the  suit.^^ 

§  575.  The  doctrine  further  discussed.  Notwithstanding  the 
general  doctrine  as  thus  stated,  recognizing  the  right  of  dif- 
ferent taxpayers  affected  by  a  common  burden  of  illegal  taxa- 
tion to  unite  in  an  application  for  equitable  relief,  it  is  held 
that  one  taxpayer  can  not  maintain  a  bill  to  enjoin  an  en- 
tire tax  imposed  upon  other  persons  as  well  as  himself,  and 
can  not  maintain  such  an  action  as  to  other  taxpayers  for 
whom  he  is  not  acting  as  agent,  trustee,  or  in  some  other 
representative  capacity.^  ^  It  has  also  been  held  that  equity 
will  not  entertain  a  bill  by  one  taxpayer  to  enjoin  the  levy- 
ing of  a  tax  against  other  persons  not  joined  as  plaintiffs  in 
the  suit,  and  that  a  tax  will  not  be  enjoined  in  behalf  of  one 
who  does  not  himself  seek  to  have  it  enjoined.^^  It  is  diffi- 
cult, however,  to  reconcile  such  rulings  of  the  courts  with  the 
doctrine  of  the  preceding   section,   which  has  not  alone  the 

&  Bowling  Green  Turnpike  Co.  v.  several.        Gilmore   v.    Norton,     10 

Albin,    34    Ind.,     554;     Forgey     v.  Kan.,  491;  Gilmore  v.  Fox,  10  Kan., 

Northern  Gravel  Road  Co.,  37  Ind.,  509. 

118.    See  Pendleton  Co.  v.  Barnard,         i*  Knopf  v.  First  National  Bank, 

40   Ind.,  146.  173  111.,  331,  50  N.  E.,  660. 

13  Glenn  v.  Waddel,  23  Ohio  St.,         is  Supervisors  of  Du  Page  Co.  t?. 

605.       And   in   Kansas  it   is  held,  Jenks,    65    111.,    275,    distinguished 

under   the   statutes   of   the     state,  and   explained    in   Knopf   v.   First 

that  any  number  of  persons  whose  National  Bank,  173  111.,  331,  50  N. 

property  is   affected   by  an   illegal  E.,   660. 

tax  or  assessment  may    unite    as         i^  Bridge    Company    v.   Commis- 

plaintiffs  in  an  action  to  enjoin  the  sioners  of  Wyandotte  Co.,  10  Kan., 

collection   of   such   tax   or    assess-  326;    Stiles   v.   City   of  Guthrie,   3 

ment,  although  their  interests  are  Okla.,  26,  41  Pac,  383. 


548  INJUNCTIONS.  [CIIAP.  VIII. 

mere  weight  of  authority  in  its  support,  but  the  established 
principles  of  modern  equity  pleading  as  well.  For,  while  the 
ancient  rules  of  pleading  in  equity  required  all  parties  de- 
siring relief  to  be  before  the  court,  the  modern  practice,  which 
may  be  said  to  have  originated  and  become  well  established 
during  the  long  chancellorship  of  Lord  Eldon,  only  requires 
sufficient  of  the  parties  to  fairly  litigate  the  right  to  be  be- 
fore the  court.  And  where  the  parties  are  numerous  the  prac- 
tice in  equit}'  is  well  established  of  permitting  one  or  more 
persons  to  file  a  bill  in  behalf  of  all  others  in  like  interest 
or  similarly  situated  to  obtain  the  desired  relief  in  behalf  of 
all;  and  no  satisfactory  reason  is  perceived  why  bills  to  en> 
join  the  enforcement  of  taxes  should  constitute  an  exception 
to  a  doctrine  so  well  established.  It  is  held,  however,  that  a 
private  taxpayer,  who  suffers  no  especial  grievance  by  a 
tax  imposed,  can  not  assume  on  behalf  of  the  public  to  restrain 
the  proceedings.^'^  And  the  issuing  of  a  tax  deed  will  not  be 
enjoined  at  the  suit  of  one  who  fails  to  show  any  interest 
in  the  lands  in  question.^^ 

§  576.  Rule  as  to  joinder  of  defendants.  Upon  the  question 
of  who  are  proper  parties  defendant  to  an  action  to  restrain 
the  collection  of  a  tax,  there  is  less  room  for  difficulty  in  prac- 
tice, the  bill  being  usually  directed  against  the  officers  by 
whom  the  tax  is  being  levied  or  collected.  In  cases  of  munici- 
pal taxation,  as  where  a  tax  for  local  improvements  is  levied 
by  a  city,  and  the  tax  when  collected  will  belong  to  the  city, 
it  should  be  joined  as  a  party  defendant  in  an  action  to  en- 
join the  tax.^''  So  in  a  bill  to  enjoin  a  county  collector  from 
selling  real  estate  under  a  judgment  for  a  delinquent  special 
assessment  levied  by  a  city,  where  the  regularity  and  validity 
of  the  judgment  and  the  acts  of  the  officials  entrusted  with 
the  collection  of  the  tax  are  not  questioned,  but  the  right  to 

'7  Miller  r.  Grandy,  13  Mich.,  '><  Johnson  v.  Brett,  64  Iowa,  162, 
540.  19   N.   W.,  895. 

i»  Gilmore  v.  Fox,  10  Kan.,  509. 


CHAP.  VIII.]  AGAINST  TAXES.  549 

the  relief  is  based  upon  acts  and  omissions  upon  the  part  of 
the  city  authorities  which  invalidate  the  assessment,  the  city- 
is  a  necessary  party  to  the  injunction  bill  and  it  is  therefore 
erroneous  to  deny  its  motion  to  be  made  a  party  defendant.^** 
So,  also,  where  it  is  sought  to  enjoin  the  extension  of  a  tax 
levied  for  park  purposes  by  a  board  of  park  commissioners, 
the  latter  are  necessary  parties  to  the  proceeding  and  it  is 
therefore  error  to  proceed  without  them.^i  And  in  a  suit  to 
restrain  the  city  and  county  authorities  from  levying  a  tax 
for  the  payment  of  interest  upon  certain  city  bonds  alleged  to 
be  invalid,  the  holders  of  the  bonds  are  necessary  parties.22 
And  it  has  even  been  held  that  in  a  suit  to  enjoin  a  county 
treasurer  and  sheriff  from  enforcing  a  personal  property  tax, 
the  board  of  county  commissioners  must  be  joined.^^  The  true 
test,  how^ever,  in  all  cases  would  seem  to  be  to  make  such 

20  Smith  r.  Kochersperger,  173  tended  beyond  the  case  of  a  single 
111.,  201,  50  N.  E.,  187;  Heinroth  tax  levy  made  by  a  single  corpor- 
V.  Kochersperger,  173  111.,  205,  50  ate  taxing  body  and  that  it  would 
N.  E.,  171.  not  require  that  where  an  injunc- 

21  Knopf  V.  Kochersperger,  173  tion  is  sought  to  restrain  the  col- 
Ill..  331,  50  N.  E.,  660;  Knopf  v.  lection  of  a  general  tax  in  which 
Chicago  Real  Estate  Board,  173  are  includea  many  items  levied  by 
111.,  196,  50  N.  E.,  658.  In  the  numerous  taxing  municipalities, 
first  of  these  cases,  the  park  com-  such  taxing  bodies  should  be  join- 
missioners  made  a  motion  to  be  ed  as  defendants  where  they  are 
admitted  as  parties  defendant  but  properly  represented  by  the  muni- 
the  motion  was  denied  by  the  cipal  officers  entrusted  with  the 
court.  Upon  an  appeal  from  a  extension  or  collection  of  the  tax. 
decree  granting  a  final  injunction.  In  Knopf  v.  Kochersperger,  supra, 
the  court  did  not  direct  the  dis-  the  court  say:  "Here  was  a  sin- 
missal  of  the  bill  but  reversed  and  gle  corporate  authority  attempting 
remanded  to  the  lower  court  with  to  exercise  a  power  by  the  levy 
leave  to  the  complainant,  upon  of  a  tax,  and  there  was  no  diffi- 
payment  of  all  costs,  to  make  the  culty  in  making  the  commission- 
park  board  defendants,  and  with  ers  defendants.  This  decision  is 
instructions  to  that  court,  if  this  only  intended  to  apply  to  such  a 
should  not  be  done,  to  dismiss  the  case." 

bill  at  complainant's  costs.     It  is         22  city  of  Anthony  v.   State,   49 

believed  that  the  rule  as  announc-    Kan.,  246,  30  Pac,  488. 

ed  in  the  text  should  not  be  ex-        23  Ba   Som  r.   Nation,    63    Kan., 


550  INJUNCTION'S.  [t'lIAl".  VIIT. 

parties  defendant  as  are  necessary  to  a  proper  solution  of 
the  questions  at  issue.  And  when  it  is  sought  to  restrain  the 
officers  of  a  town  from  the  collection  of  unpaid  taxes,  it  is 
not  necessary  to  join  as  defendants  the  officers  of  the  county, 
when  a  complete  determination  of  the  questions  involved  may 
be  had  without  them.-^ 

§577.  Railroad  tax,  different  counties  joined;  school  dis- 
trict; pretended  corporation.  When  the  action  is  brought  by 
a  railway  company  to  enjoin  the  collection  of  a  tax  levied 
upon  its  lands,  it  is  proper  to  join  as  defendants  the  different 
counties  through  which  the  railroad  runs  when  the  question 
upon  which  the  case  turns  is  common  to  them  all.-^  And  upon 
a  bill  brought  against  a  county  treasurer  to  restrain  him  from 
collecting  a  tax  levied  for  the  payment  of  a  school  district 
bond,  the  district  is  a  necessary  party  defendant,  and  in  such 
case  it  is  error  to  overrule  a  demurrer  for  want  of  proper 
parties.-*^  And  when  it  is  sought  to  enjoin  an  assessment 
levied  for  purposes  of  improvement  by  a  pretended  corpora- 
tion, such  as  a  drainage  company,  which  is  not  legally  in- 
corporated, the  action  is  properly  brought  against  such  as- 
sumed corporation  in  its  corporate  name  as  defendant.-^ 

§  577  a.  Holder  of  corporate  bonds,  secured  by  mortgage, 
when  not  proper  party  complainant.  The  holder  of  corporate 
bonds  secured  by  mortgage  upon  property  of  the  corpora- 
tion can  not  enjoin  the  collection  of  a  tax  assessed  against  the 
corporate  property  where  he  fails  to  show  that  he  is  either 
the  mortgagee  or  that  the  legal  holder  of  the  mortgage  has 
refused  to  act;  and  in  such  case  the  holder  of  the  mortgage 
should  be  made  a  party  defendant.-^ 

247,  65  Pac,  226;   Shearer  v.  Mur-  also  Voss  r.  Union  School  District, 

phy,  63  Kan.,  537,  66  Pac,  240.  18  Kan.,  467. 

•-;4  Milwaukee     Iron     Company   v.  27  Newton        County       Drainage 

Town   of   Hubbard.    29   Wis.,  51.  Company  v.  Nofsinger,  43  Ind.,  566. 

ar.  Union    Pacific    R.    Co.,   v.    Mc-  '^^  Bayles  r.   Dunn,  54   C.  C.   A., 

Shane,    3    Dill..   303.  549,  116  Fed.,  185. 

■-i«Hays  '•.  Hill,  17  Kan..  360.  See 


CHAPTER  IX. 
OF  INJUNCTIONS   PERTAINING  TO  STREETS   AND    HIGHWAYS. 

§  578.  Taking  property  for  road  or  street  without  compensation  en- 
joined. 

579.  Statutory  or  legal  remedy  must  be  first  exhausted. 

580.  Injunction  allowed  when  legal  remedy  inadequate. 

581.  Effect  of  contract  with  property  owner. 

582.  Injunction  refused  when  legal  tribunal  has  acted. 

583.  Effect  of  pending  appeal;  failure  to  award  damages  to  railway, 

584.  Removal   of  fences;    quarrying  stone. 

585.  Effect  of  tender  of  damages. 

586.  Duration  of  injunction;  irreparable  injury  must  be  shown. 

587.  Municipal  control  over  streets  rarely  interfered  with;  changing 

grade  of  street. 

588.  The  same. 

589.  Laying  railway  tracks  in  streets. 

589a.  Elevated  railroad  in  street;    hack  stands. 

589&.  Electric  railroad  in  street;  the  rule  in  New  York. 

589c.  Frontage  consent 

590.  Injunction  pending  suit  to  test  legal  right;   insolvency  of  de- 

fendant. 

591.  Apprehensions    of   future    injury,   when    insuflBcient. 

592.  Opening  of  public  highways;   remedy  at  law. 

593.  Discretion  of   municipal    authorities  not   interfered  with. 

594.  Railway  company  in  street;    closing  streets;    vacating  streets; 

plaintiffs  must  own  adjacent  property. 

595.  Exercise  of  franchise. 

596.  Closing  highway. 

597.  Disfiguration  of  premises  by  proposed  road;   land  acquired  for 

specific  purpose. 
597a    Unauthorized  opening  or  maintenance  of  highway  enjoined. 
597b.  Unauthorized  use  of  streets   by  gas  company  enjoined. 
597c.  Injunction  against  steam-roller  in  highway. 
597d.  Municipality  may  enjoin   improvement  contrary  to  ordinance. 
597e.  Injunction  against  total  obstruction  of  street. 
597f.  Telegraph  and  telephone  poles;   electric  light  poles  and  wires. 
597fir.  Injunction   on   behalf   of   telephone   company   against   electric 

street  railway. 
597?i.  Injunction  on  behalf  of  electric  lighting  company  against  rival 

company  in  highway. 

551 


552  INJUNCTIONS.  [chap.  IX. 

§  578.  Taking  property  for  road  or  street  without  compen- 
sation enjoined.  The  preventive  jurisdiction  of  courts  of 
equity  hy  the  writ  of  injunction  is  frequently  invoked  to 
restrain  the  opening  of  streets  and  highways  because  of  the 
refusal  or  omission  of  the  public  authorities  to  make  proper 
compensation  to  property  owners  for  damages  incurred  in  tak- 
ing their  land  for  public  use.  And  the  principle  is  well  es- 
tablished in  cases  of  streets  and  highAvays,  as  in  cases  of  rail- 
roads, that  the  failure  to  make  or  tender  due  compensation. 
to  the  owner  of  land  for  damages  incurred  by  taking  his  land 
for  the  purposes  of  a  road  or  street,  will  justify  relief  by 
injunction  at  the  suit  of  the  property  owner  until  his  dam- 
ages are  properly  adjusted,  or  until  just  compensation  is  made 
therefor.i  In  such  cases  the  jurisdiction  is  exercised  for  the 
prevention  of  irreparable  injury  which  would  necessarily  re- 
sult from  the  prosecution  of  such  public  works  without  just 
compensation  being  first  made  to  the  property  owner,  the 
ordinary  legal  remedies  being  regarded  as  inadequate  to  af- 
ford satisfactory  relief.^     Where,  therefore,  commissioners  of 

1  Commissioners  v.  Durham,  43  from  opening  a  ditch  over  plain- 
Ill.,  86;  Horton  v.  Hoyt,  11  Iowa,  tiff's  property  without  condemna- 
496;  Powers  i;.  Bears,  12  Wis.,  213;  tion  and  compensation.  Strohl  v. 
Uren  v.  Walsh,  57  Wis.,  98,  14  N.  Borough  of  Ephrata,  178  Pa.  St.,, 
W.,  902;  Carbon  C.  &  M.  Co.  r.  50,  35  Atl.,  713.  In  Fulton  v.  Town 
Drake,  26  Kan.,  345;  Mason  City  S.  of  Dover,  6  Del.,  Ch.,  1,  6  Atl.,  633, 
&  M.  Co.  V.  Mason,  23  West  Va..  it  was  held  that  a  property  owner 
211;  Jarvis  v.  Town  of  Grafton,  44  may  enjoin  the  taking  of  a  portion 
West  Va.,  453,  30  S.  E.,  178;  City  of  his  property  by  a  municipality 
of  New  Albany  v.  White,  100  Ind.,  for  the  purposes  of  a  highway  be- 
206;  Folley  v.  Passaic,  11  C.  E.  cause  of  the  failure  of  the  authori- 
Green,  216;  Carpenter  v.  Grisham,  ties  to  comply  with  the  terms  of 
59  Mo.,  247;  Eidemiller  r.  Wyan-  a  statute  which  provided  that  upon 
dotte  City,  2  Dill.,  376;  Mclntire  v.  the  condemnation  of  any  land  for 
Lucker,  77  Tex.,  259;  13  S.  W.,  the  purpose  of  a  highway,  imme- 
1027;  Hopkins  r.  Cravey,  85  Tex.,  diate  notice  thereof  should  be  giv- 
189,  19  S.  W.,  1067;  Olson  v.  City  en  to  the  owner. 
of  Seattle,  30  Wash.,  687,  71  Pac,  -  Commissioners  v.  Durham.  43 
201.  Upon  the  same  principle,  a  III.,  86.  And  see  Sidener  v.  Nor- 
municipality     may     be     enjoined  ristown,  23  Ind.,  623. 


CHAP.  IX.]  STREETS   AND  HIGHWATS.  553 

highways  are  proceeding  to  open  a  road  without  having  ad- 
justed the  damages  with  the  owner  of  land  over  which  it  is 
proposed  to  locate  the  road,  an  injunction  will  be  granted  to 
restrain  their  proceedings.-''  And  where  a  municipal  corpora- 
tion, under  claim  and  color  of  right,  enters  upon  and  takes 
private  property  for  public  uses,  giving  the  owner  a  grossly 
inadequate  compensation  for  the  damages  incurred,  if  the  steps 
taken  are  regular  in  form  so  that  the  illegality  does  not  appear 
on  the  face  of  the  proceedings  themselves,  an  injunction  will 
be  granted,  the  common  law  remedy  by  cei^tiorari  being  in- 
sufficient.'* So  where,  under  the  constitution  of  the  state,  pay- 
ment of  compensation  to  the  land  owner,  or  a  deposit  of  the 
requisite  amount  must  be  made  before  his  property  can  be  ap- 
propriated to  the  use  of  any  corporation,  a  court  of  equity 
will  enjoin  the  taking  possession  of  such  property  for  the  pur- 
pose of  a  public  road  before  making  the  payment  or  deposit. 
And  the  injunction  may  be  allowed,  in  such  case,  pending  an 
appeal  by  the  land  owner  from  the  award  of  damages  for  the 
land  taken.^  So  when  a  board  of  county  supervisors  in  con- 
structing a  highway  have  encroached  upon  plaintiff's  land  by 
building  an  embankment  thereon,  without  his  consent  and 
without  making  compensation,  they  may  be  reciuired  by  man- 
datory injunction,  upon  the  final  hearing,  to  remove  such  em- 
bankment.^ 

§  579.  Statutory  or  legal  remedy  must  be  first  exhausted. 
The  general  doctrine  as  above  stated  is  to  be  accepted  with  this 
qualification:  that  where  a  statutory  remedy  is  provided  for 
obtaining  damages  for  private  property  taken  in  the  construc- 
tion of  roads,  or  for  the  relief  of  such  persons  as  consider  them- 
selves aggrieved  in  the  assessment  of  damages  for  their  prop- 
erty taken,  such  statutory  remedy  must  be  first  exhausted  be- 

a  Commissioners   v.   Durham,   43  s  Eidemiller  v.  Wyandotte  City, 

111-  86.  2  Dill.,  376. 

*  Baldwin    v.   Buffalo,    29    Barb.,  6  Harrison  v.  Board  of  Supervis- 

396.  ors,  51  Wis.,  645,  8  N.  W.,  731. 


554  INJUNCTIONS.  [chap.  IX. 

fore  equity  will  extend  its  protection.'^  Thus,  where  a  statute 
provides  a  mode  of  obtaining  damages  for  property  taken  for 
the  use  and  construction  of  a  road,  but, the  owner  of  the  land 
has  neglected  to  avail  himself  of  the  mode  of  relief  thus  pointed 
out,  he  will  not  be  allowed  to  enjoin  the  construction  of  the 
road  because  of  the  non-payment  of  damages.^  And  the  owner 
of  land  through  which  a  city  has  laid  out  a  street,  and  who  is 
dissatisfied  with  the  assessment  of  damages,  but  has  failed  to 
avail  himself  of  a  legal  remedy  provided  by  statute,  is  not  en- 
titled to  an  injunction  against  the  city  authorities  to  prevent 
their  entering  upon  his  land.^  So  where  the  grounds  relied 
upon  for  an  injunction  to  restrain  the  opening  of  a  highway 
are  irregularities  in  the  statutory  proceedings  for  opening 
such  highway  and  the  rejection  of  plaintiff's  claim  for  dam- 
ages, equity  will  not  interfere  by  injunction  when  plaintiff  may 
have  full  relief  by  appeal  or  writ  of  error. ^^ 

§  580.  Injunction  allowed  when  leg^al  remedy  inadequate. 
Where  the  legal  remedy  is  plainly  insufficient  to  meet  the 
requirements  of  the  case  and  to  avert  the  threatened 
injury,  equity  will  not  compel  the  person  aggrieved  to 
await  the  tardy  action  of  the  ordinary  tribunals.  Thus, 
where  the  power  of  taxation  of  a  municipal  corporation  is 
so  inadequate  that  compensation  can  not,  within  a  reason- 
able time,  be  made  to  the  owner  of  private  property  for 
damages  resulting  to  him  by  laying  out  a  street  through 
his  i)roperty,  the  opening  of  the  street  will  be  enjoined 
until  security  is  given  for  all  damages  which  may  be  in- 
curred.^ ^ 

§  581.  Effect  of  contract  with  property  owner.  Where, 
however,  a  lot  owner   in   a  city  has   entered  into   an   agree- 

"  Nichols  V.  Salem,  14  Gray,  490;  »  Nichols  r.  Salem,  14  Gray,  490. 

Reckrer  v.    Warner,    22   Ohio    St.,  m  Frevert   v.   Finfrock,   31   Ohio 

275.     And  see  Parham  v.  Justices,  St.  621.  And  see  McClelland  v.  Mil- 

9  Ga.,  341.  ler,  28  Ohio  St.,  488. 

«  Reckner  V.  Warner,  22  Ohio  St.,  n  Keene   r.    Bristol,    26    Pa.   St., 

275.  46. 


CHAP.  IX.]  STREETS   AND   HIGHWAYS.  555 

nient  with  the  city  authorities  for  the  sale  of  his  |.  remises 
at  a  given  price,  and  the  city  is  proceeding  to  prepare  the 
lot  for  use  as  a  public  highway,  he  can  not  enjoin  them 
from  so  doing  upon  the  ground  that  the  damages  for  tak- 
ing his  property  have  not  been  paid;  since  if  he  claims 
that  the  sale  to  the  city  is  void,  his  remedy  is  by  eject- 
ment; otherwise,  by  an  action  to  recover  the  purchase 
money  under  the  agreement  of  sale.^^ 

§  582.  Injunction  refused  when  legal  tribunal  has  acted. 
Equity  will  not  enjoin  a  turnpike  company  from  operat- 
ing its  road  over  complainant's  premises  upon  the  ground 
that  insufficient  damages  have  been  assessed  for  the  right 
of  way,  when  the  assessment  has  been  made  in  the  manner 
prescribed  by  statute,  and  no  fraud  or  misconduct  is 
charged  against  the  persons  making  it,  and  when  no  ap- 
peal has  been  prosecuted  from  their  decision.  In  such  case 
the  court  will  presume  that  the  action  of  the  persons  desig- 
nated by  law  to  make  the  assessment  is  correct,  and  will 
regard  it  as  conclusive  so  long  as  it  remains  in  force  and 
unreversed.12  Nor  will  the  opening  of  a  highway  over 
plaintiff's  land  be  enjoined  upon  the  ground  that  the  dam- 
ages awarded  him  are  inedequate,  when  he  has  neglected 
to  avail  himself  of  the  statutory  remedy  by  appeal  from  the 
award.^'*  So  when  the  right  of  a  land  owner  to  compensa- 
tion for  his  land  taken  in  the  construction  of  a  highway  has 
been  passed  upon  by  a  board  of  municipal  officers  desig- 
nated and  empowered  by  law  for  that  purpose  and  decided 
adversely  to  the  owner,  he  can  not  enjoin  the  taking  of  the 
land  because  of  want  of  compensation,  since  the  action  of 
the  legal  tribunal  authorized  to  determine  the  question  of 
compensation  will  not  be  thus  avoided  collaterally  in  equity.^'* 

12  Hammerslough  r.  City  of  Kan-  i^  Hopkins    v.    Keller,    16    Neb., 

sas.  57  Mo.,  219.  569,  20   N.  W.,  874. 

i:*  Norristown    Turnpike    Co.   v.  i^  Masters  f.  McHolland,  12  Kan,, 

Burket,  26  Ind.,  53.  17. 


556  INJUNCTIONS.  [CIIAP.  IX. 

§  583.  Effect  of  pending-  appeal ;  failure  to  award  damages 
to  railway.  When  a  city  has  instituted  proceedings  to  con- 
demn property  of  a  railway  company  for  the  use  of  a  pro- 
jected street  across  the  railway,  and  an  award  of  damages 
has  been  made,  but  an  appeal  has  been  taken  by  the  com- 
pany from  such  award,  the  pendency  of  the  appeal  having 
the  effect  under  the  laws  of  the  state  of  vacating  the  assess- 
ment of  damages,  the  city  may  be  enjoined,  pending  the 
appeal,  from  taking  possession  of  the  property  in  question. ^^ 
But  a  railway  company  will  not  be  alloAved  to  enjoin  the 
opening  of  a  highway  across  its  road  upon  the  ground  that 
the  commissioners  appointed  for ^  that  purpose  have  assessed 
no  damages  in  favor  of  the  company  on  account  of  such 
crossing,  when  the  statute  affords  an  adequate  remedy  by 
appeal  from  the  action  of  the   commissioners.^" 

§  584.  Removal  of  fences ;  quarrying  stone.  It  is  also 
held  that  when  a  municipal  corporation  threatens  to  remove 
plaintiff's  fences  as  an  alleged  encroachment  upon  a  street, 
plaintiff  having  for  thirty  years  been  in  the  undisturbed 
possession  of  the  premises,  the  city  having  used  no  por- 
tion thereof  for  a  street,  and  offering  no  compensation  to 
plaintiff  and  no  means  of  adjusting  his  compensation  for 
the  property  to  be  taken,  an  appropriate  case  is  presented 
for  relief  by  injunction.^s  So  a  property  owner  may  enjoin 
the  municipal  authorities  from  proceeding  upon  his  laud  and 
tearing  down  fences  and  removing  trees  upon  the  alleged 
ground  that  a  portion  of  the  land  is  a  part  of  the  public 
highway.^'*  And  the  owner  of  a  lot  abutting  upon  a  pub- 
lic street,  who  owns  the  fee  in  the  street  subject  to  the  pub- 
lic  easement,   may   restrain   the  unautliorized   quarrying  and 

I"  City  of  Kansas  v.  Kansas  Pa-        ]«  Shields  v.  Mayor  of  Savannah, 

cific  R.  Co.,  18  Kan.,  .331.    See  also  55  Ga.,  150.     See  also  Bingham  v. 

Blackshire  v.  Atchison,  T.  &  S.  F.  City  of  Walla  Walla,  3  Wash.,  68, 

R.  Co.,  13  Kan.,  514.  13  Pac.  408. 

"  Chicago  &  A.  R.  Co.  r.  Maddox,         i''  Villase  of  Itasca  v.  Schroeder, 

92  Mo.,  469,  4   S.   W.,  417.  182   111.,   192,   55   N.   E.,   50. 


CHAP.  IX.]  STREETS   AND   HIGHWAYS.  557 

removal   of  stone   from   the   street   in    front    of   his   premises 
■vvhieh  constitutes  the  chief  value  of  the  land.^o 

§  585.  Effect  of  tender  of  damages.  The  question  of  a 
tender  of  the  damages  incurred  in  the  opening  of  highways 
may  have  considerable  weight  in  determining  whether  the 
injunction  shall  be  permitted,  and  an  actual  tender  of  dam- 
ages may  be  sufficient  to  bar  the  person  aggrieved  from 
relief  in  equity.  Thus,  where  all  the  proceedings  required 
by  law  for  the  opening  of  a  public  highway  have  been  fully 
complied  with,  and  damages  for  the  land  condemned  have 
been  properly  assessed  and  tendered  the  owner,  who  re- 
fuses them,  he  will  not  be  allowed  to  enjoin  an  officer  from 
opening  the  highway.-^  But  if  damages  for  the  land  appro- 
priated be  not  tendered  the  owner  or  his  agent,  he  may 
properly  enjoin  proceedings  for  the  opening  of  the  road.-- 

§586.  Duration  of  injunction;  irreparable  injury  must  be 
shown.  The  object  of  an  injunction  in  the  class  of  cases 
under  consideration  being  the  protection  of  the  property 
owner  from  such  loss  and  injury  as  would  result  from  tak- 
ing his  property  without  just  compensation,  it  will  be  en- 
forced only  so  long  as  may  be  necessary  to  secure  this  end. 
And  where  a  bill  is  filed  to  restrain  county  authorities 
from  opening  a  highway  upon  the  ground  that  they  have 
not  assessed  the  damages  to  property  holders  or  provided 
for  the  payment  thereof  as  required  by  law,  the  officers 
will  be  enjoined  only  until  such  time  as  they  shall  have 
complied  with  the  requirements  of  the  law  and  made  suit- 
able provisions  for  damages  incurred;  and  it  is  error  in 
such  case  to  make  the  injunction  perpetual.^s  And  in  the 
absence  of  any  allegations  of  irreparable  injury  an  injunc- 
tion will  not  be  granted  against  the  construction  of  streets 

20  Althen  v.  Kelly,  32  Minn.,  280,        22  Curran   v.    Shattuck,    24   Cal., 
2u  N.  W.,  188.  427. 

21  Creanor  v.  Nelson,  23  Cal.,  464.         23  Champion  v.  Sessions,  2  Nev., 

271. 


558  INJUNCTIONS.  [chap.  IX. 

or  roads,  since  without  such  injury  no  sufficient  reason  ex- 
ists for  seeking  redress  in  an  equitable  rather  than  a  legal 
forum.2^ 

§  587.  Municipal  control  over  streets  rarely  interfered 
with;  changing  grade  of  street.  The  jurisdiction  of  equity 
in  restraint  of  the  action  of  municipal  corporations  in  reg- 
ulating streets  and  highways  is  exercised  with  much  cau- 
tion, and  is  not  regarded  as  a  favorite  jurisdiction  with  the 
courts.  In  the  absence  of  allegations  of  irreparable  injury, 
equity  will  h-esitate  to  interfere  when  the  effect  of  an  injunc- 
tion would  be  to  review  the  action  of  such  inferior  political 
tribunals,  and  thus  practically  constitute  a  court  of  equity  a 
court  of  errors  to  sit  in  review  of  the  proceedings  of  other 
tribunals.  And  with  the  control  of  matters  resting  largely  in 
the  discretion  of  municipal  authorities  equity  will  not  ordi- 
narily interfere.  Thus,  a  municipal  corporation  will  not  be 
enjoined  in  the  exercise  of  its  control  over  the  regulation  of 
streets  and  the  laying  down  of  curbstones  on  a  proposed  line 
where  no  irreparable  injury  is  shown  as  likely  to  ensue,  the 
sole  equity  of  the  bill  resting  in  the  fact  that  the  curbstones 
are  not  being  established  on  the  true  line.  Nor  will  the  fact 
that  such  action  of  the  city  authorities  may  involve  some 
expense  to  complainant  and  lessen  the  value  of  his  property 
affords  sufficient  ground  to  warrant  a  departure  from  the 
rule  and  authorize  an  injunction  against  the  proceedings.-^ 
Nor  can  a  street  railway  company  enjoin  the  enforcement 
by  the  city  authorities  of  an  ordinance  requiring  it  to  re- 
move its  tracks  from  the  side  to  the  center  of  the  highway, 
where  such  ordinance  iz  merely  the  exercise  by  the  city  of 
its  right  to  make  reasonable  regulations  for  the  use  of  the 
street,  and  the  plaintiff's  franchise  has  been  granted  subject 
to  that  right.-^  Nor  will  the  municipal  autliorities  be  re- 
s'* Holmes  V.  Jersey  City,  1  Beas.,  -•«  Macon  C.  S.  R.  Co.  v.  Mayor, 
299.  112  Ga.,  782,  38  S.  E.,  60. 

25  Id. 


CHAr.  IX.]  STEEETS   AND  HIGHWAYS.  559 

strained  from  preventing  plaintiff  from  laying  gas  pipes  in 
a  public  street,  under  an  ordinance  granted  for  that  pur- 
pose, where  it  is  not  clear  that  plaintiff  has  fulfilled  the  con- 
ditions and  requirements  of  the  ordinance. ^^  So  a  street  rail- 
way company  can  not  enjoin  the  municipal  authorities  from 
removing  tracks  laid  in  the  highway  under  an  ordinance  for 
that  purpose,  where  plaintiff  has  wholly  failed  to  comply 
with  the  requirements  of  the  ordinance  as  to  the  manner  in 
which  the  tracks  shall  be  laid.^^  j  So  a  railway  company 
can  not  enjoin  a  city  from  constructing  a  street  at  grade 
across  the  tracks  of  the  company,  the  city  having  full  powej" 
so  to  do.2»  The  rule  is  well  established,  however,  that;  j,  ,, 
equity  may  enjoin  a  municipal  corporation  from  changing  the^'^^S 
established  grade  of  a  street,  to  the  serious  injury  of  a  lot!  '<^.. 
owner,  without  having  ascertained  and  paid  his  damages  in 
the  manner  provided  by  law.^^  And  where  the  fee  to  the'\ 
street  is  in  the  abutting  owner  and  where,  at  the  time  of! 
the  opening  of  the  highway,  certain  shade  trees  located 
upon  it  were  allowed  to  remain,  the  municipal  authorities 
may  be  restrained  from  subsequently  removing  such  trees 
in  the  absence  of  some  public  necessity  for  so  doing.^i 

§  588.  The  same.  An  injunction  will  not  be  allowed  to 
prevent  the  authorities  of  a  city  from  exercising  their  con- 
trol over  the  opening  or  widening  of  public  streets  or  high- 

27  Chicago  Municipal  G.  L.  &  F.  10  S.  Dak.,  312,  73  N.  W.,  101,  39 
Co.  V.  Town  of  Lake,  130  111.,  42,  L.  R.  A.,  345.  But  see,  contra, 
22  N.  E.,  616.  Moore  v.  City  of  Atlanta.   70  Ga., 

28  Spokane  St.  Ry.  Co.  v.  City  of  611,  where  it  is  held  that,  although 
Spokane  Palls,  46  Fed.,  322.  a  property  owner  abutting  upon  a 

29  New  York  &  N.  E.  R.  Co.  v.  street  may  be  entitled  to  recover 
City  of  Boston,  127  Mass.,  229.  damages  for  injuries  sustained  by 

30  McElroy  v.  Kansas  City,  21  a  change  in  the  grade  of  the  street. 
Fed.,  257;  Wilkin  v.  City  of  St.  he  can  not  enjoin  the  city  from 
Paul,  33  Minn.,  181,  22  N.  W.,  249;  making  such  change  until  his  dam- 
Brown  V.  City  of  Seattle,  5  Wash.,  ages  are  paid. 

35,  31  Pac,  313,  32  Pac,  214,  18  L.         3i  City  of  Atlanta  v.  Holliday,  96 
R.  A.,  161;  Searle  v.  City  of  Lead,     Ga.,  546,  23  S.  E.,  509. 


560  INJUNCTIONS,  [chap.  IX. 

ways,  or  from  interfering  therewith  at  the  suit  of  one  whose 
only  right  is  based  on  twenty  years  adverse  user  and  pos- 
session, and  in  the  absence  of  other  equities  such  adverse 
possession  will  not  warrant  relief.^^  Nqj.  -^[w  equity  inter- 
pose to  prevent  the  commission  of  alleged  torts  or  trespasses 
which  consist  simply  in  such  acts  as  are  incident  to  the 
widening  of  a  street  and  the  removal  of  a  portion  of  a  side- 
walk under  proper  authority,  but  will  leave  the  parties  to 
such  redress  as  is  afforded  by  the  ordinary  legal  tribunals.^^ 

§  589.    IiB.ymg    railway    tracks    in    streets.      The    use    of 

streets  for  purposes  unauthorized  by  the  dedication  of  the 
land  to  the  public,  or  by  the  law  under  which  the  dedication 
was  made,  may  be  enjoined  where  special  injury  is  shown 
to  result  to  the  adjacent  property  owner  owning  the  fee  in 
the  street  subject  to  the  public  easement.  Thus,  the  laying 
of  the  track  of  a  railway  company  over  land  which  has 
been  dedicated  to  the  public  use  for  streets,  being  unau- 
thorized by  the  dedication,  will  be  enjoined  when  no  compen- 
sation has  been  made  to  the  property  owner,  and  when  there 
is  serious  doubt  as  to  the  authority  of  the  railway  company 

32  Cross  V.  Mayor,  3  C.  E.  Green,  limitations      against      individuals, 

305;    Taintor    v.    Mayor,    4    C.    E.  but  only  where  the  state  or  public 

Green  46.     This  was  a  bill  for  an  are  expressly  included.     This  is  a 

injunction  againsi    the  mayor  and  wise  and  wholesome  principle  that 

corporate  authorities  of  the  city  of  I  feel  no   inclination  to  disregard 

Morristown  to  restrain  the  remov-  or    to    narrow.     To    protect   high- 

al  of  trees,  fences  and   shrubbery  ways  from  encroachments  that  it 

in   widening  a  street  upon  which  is  the  business  of  no  one  to  resist, 

complainant  had  encroached.  Com-  requires  that  the  public  be  allowed 

plainant       relied,      among      other  to    resume   its   rights   at    any    dis- 

points,  upon  possession  for  a  per-  tance    of    time,    disregarding    any 

iod  of  more  than  twenty  years.  Za-  loss  to  those  who  have  appropriat- 

briskie,     Chancellor,     in     passing  ed   and   erected    improvements   on 

upon  the  case,  says:     "The  posses-  the  public  domain,  or  to  the  more 

sion  for  over  twenty  years  can  innocent  purchasers  from  them." 
avail  the  complainant  nothing.     It         •'':'  Cross  r.  Mayor,  3  C.  E.  Green, 

is  well  settled   that  time  does  not  30.5.      See    also    Sims    r.    City    of 

run  against  the  state,  or  the  pub-  Frankfort,  79  Ind.,  446. 
He,   by   analogy  to   the  statute  of 


•CHAP.  IX.]  STEEETS   AXD  HIGHWAYS.  561 

to  proceed.  And  in  such  case  the  injunction  will  be  granted 
at  the  suit  of  the  owner  of  the  fee,  on  the  ground  that 
the  use  of  the  streets  for  such  unauthorized  purpose  is  a 
special  injury  to  him.^^  So  an  injunction  will  be  granted  at 
the  suit  of  adjacent  property  owners,  sustaining  a  special 
and  peculiar  injury,  to  restrain  the  laying  of  a  street  rail- 
way through  streets  in  front  of  their  premises  without  legal 
authority  from  the  common  council  of  the  city.^^  And  the 
construction  of  a  third  track  of  a  street  railway  in  a  pub- 
lic highway,  under  a  municipal  grant,  which  would  result  in 
"an  unreasonable  obstruction  of  the  street  may  be  restrained 
at  the  suit  of  an  abutter  whose  means  of  access  to  his  prop- 
erty would  thereby  be  unnecessarily  impaired;  and  the  relief 
is  granted  regardless  of  the  ownership  of  the  fee.^^  So  the 
unauthorized  laying  of  a  switch  track  of  a  railroad  in  a 
public  highway  contrary  to  the  requirements  of  the  ordi- 
nance under  which  the  road  was  being  constructed,  whereby 
the  right  of  ingress  and  -egress  to  adjacent  property  is 
practically  destroyed,  constitutes  ground  for  equitable  relief 
upon  behalf  of  the  abutting  owner  who  suffers  special  dam- 
age from  such  obstruction.^'^  But  where  the  charter  of  a 
street  railway  authorizes  the  construction  of  its  tracks 
through  the  streets  of  a  city,  it'  is  not  regarded  as  in  vio- 
lation of  the  provision  of  the  constitution  prohibiting  the 
taking  of  private  property  without  compensation,  and  an 
injunction  will  not  be  allowed.  Such  a  provision  in  a  char- 
ter is  regarded  rather  as  promoting  the  legitimate  use  of 
the  highway  and  the  exercise  of  the  public  right  of  travel, 
and  not  as  the  taking  of  private  property  without  compensa- 

31  Schurmeier  v.  St.  Paul  &  P.  R.  v.  Inter-Country  S.  R.  Co.,  167  Pa. 

Co.,  10  Minn.,  82;    Street  Railway  St.,    120,   31  Atl.,   476. 
r.  Cumminsville,  14  Ohio  St.,  523;         ss  Dooly  Block  v.  S.  L.  R.  T.  Co., 

Railway  Co.  v.  Lawrence    38  Ohio  9  Utah,  31,  33  Pac,  229,  24  L.  R. 

St.,  41.  A.,   610. 

35  Wetmore    v.    Story,    22    Barb.,         ^t  Chicago,  St.  L.  &  P.  R.  Co.  v. 

414;  S.  C,  3  Ab.  Pr.,  262;   Thomas  Eisert,    127    Ind.,   156,    26    N.     E.. 


759. 


36 


562  INJUNCTIONS.  [chap.  IX. 

tion.38  ^ii(j  -where  the  fee  to  the  highway  is  in  the  munici- 
pality, the  construction  of  a  raih'oad  or  street  railway  track, 
under  competent  legislative  or  municipal  authority,  there 
being  no  actual  taking  of  the  property  of  the  abutting 
owner,  does  not  constitute  the  taking  of  private  property 
without  compensation  within  the  meaning  of  such  a  consti- 
tutional provision,  and  the  abutter  can  therefore  not  enjoin 
such  construction  but  will  be  left  to  pursue  his  legal  remedy 
for  such  consequential  damages  as  he  may  have  sustained.^^ 
But  a  property  owner  abutting  upon  a  street  may  restrain 
the  operation  through  the  street  in  front  of  his  premises  of 
a  street  railway  for  private  purposes,  the  company  being 
authorized  under  its  charter  to  operate  its  road  for  the  bene- 
fit of  the  public  only,  and  the  city  having  no  power  to  au- 
thorize the  construction  and  operation  of  the  road  through 
the  streets  for  private  purposes.^^  So,  also,  where  it  is 
beyond  the  power  of  a  city  council  to  grant  to  a  private 
individual  the  right  to  operate  a  railroad  in  a  public  highway 
for  purely  private  purposes,  the  construction  of  such  a  road 
will  be  enjoined  at  the  instance  of  an  abutting  owner.*i  And 
the  relief  is  granted  in  such  a  case  w^hether  the  fee  to  the 
street  is  in  the  abutter  or  in  the  municipality,  the  injury 
resulting  from  the  nuisance  being  the  same  in  either  case.*^ 
And  one  who  owns  lands  abutting  on  both  sides  of  a  street, 
owning  also  the  fee  of  the  street  subject  to  the  public  ease- 
ment,  is  not   by  reason   of  such   ownershi^^   entitled   to   con- 

38Hinchman   v.   Paterson   H.   R.  *"  Mayor  r.  Harris,  73  Ga.,  478; 

Co.,  2  C.   E.  Green,   75.  S.   C,  75   Ga.,  761. 

39  Osborne  v.  Missouri  Pacific  R.  *^  Glaessner    v.    A.-B.    B.    Assn., 

Co.,  147  U.  S.,  248,  13  Sup.  Ct.  Rep.,  100  Mo.,  508,  13  S.  VV.,  707;  Gustaf- 

299;    O'Brien   v.    Baltimore    B.    R.  son  r.  Haram,  56  Minn.,  334,  57  N. 

Co.,   74  Md.,   363,   22   Atl.,   141,   13  W.,  1054,  22  L.  R.  A.,  565;  Richi  v. 

L.  R.  A.,  126;   Garrett  v.  L.  R.  E.  Chattanooga     Brewing     Co.,     105 

Co..  79  Md.,  277,  29  Atl.,  830,  24  L.  Tenn.,   651.  58   S.   W..   646. 

R.  A.,  396;   Poole  v.  Falls  R.  E.  R.  42  Qustafson  v.  Hamm,  56  Minn., 

Co.,  88  Md.,  533,  41  All.,  1069.  334,  57   N.   W.,   1054,   22  L.  R.  A., 

565. 


CHAP.  IX.]  STEEETS  AND  HIGHWAYS.  563 

struct  and  operate  railway  tracks  across  the  street,  and  can 
not  enjoin  the  municipal  authorities  from  removing  such 
tracks,  their  use  being  inconsistent  with  the  public  use. 
And  in  such  case,  the  municipal  officers  being  authorized 
under  the  laws  of  the  state  to  remove  the  obstruction,  an 
injunction  will  not  be  granted  upon  an  information  by  the 
attorney-general."^^  And  the  owner  of  a  lot  abutting  upon 
a  public  street  can  not  enjoin  the  construction  and  opera- 
tion of  a  railway  through  the  street  when  he  sustains  no 
injury  different  from  that  sustained  by  the  public  at  large."*"* 
But  a  municipal  corporation  which  is  charged  by  law  with 
the  duty  of  maintaining  the  public  streets  may  enjoin  the 
unauthorized  construction  of  a  street  railway  in  its  streets."*^ 
§589 a.  Elevated  railroad  in  street;  hack  stands.  The 
owner  of  property  which  abuts  upon  a  public  highway,  the 
fee  of  which  is  in  the  municipality,  can  not  enjoin  the  con- 
struction of  an  elevated  railroad  upon  the  highway  in 
front  of  his  premises  upon  the  alleged  ground  that  the 
ordinance  under  which  the  road  is  being  constructed  is  ille- 
gal, as  for  want  of  the  necessary  frontage  consent  required 
by  law.  The  use  of  the  street  for  such  a  purpose  constitutes 
no  new  or  additional  burden,  and,  since  the  fee  is  in  the 
municipality,  the  adjacent  property  suffers  a  consequential 
injury  merely,  for  which  ample  redress  may  be  had  in  a 
court  of  law;  and  the  abutter  will  accordingly  be  left  to 
the  pursuit  of  his  legal  remedy  for  whatever  damage  he  may 
have   sustained."*^     Upon   similar   principles,    a   railroad   com- 

43  Bay  State  Brick  Co.  v.  Foster,  -le  Doane    v.   Lake   Street  El.   R. 

115  Mass.,  431.  Co.,  165  111.,  510,  46  N.  E.,  520,  36 

4*  Crowley  v.  Davis,  63  Cal.,  460;  L.  R.  A.,  97,  56  Am.  St.  Rep.,  265, 

Decker  v.  E.,  S.  &  N.  R.  Co.,  133  followed  by  Blodgett  v.  Northwest- 

Ind.,  493,  33  N.  E.,  349;   Gundlach  ern  El.  R.  Co.,  26  C.  C.  A.,  21,  80 

V.  Hamm,  62  Minn.,  42,  64  N.  W.,  Fed.,  601.     In  New  York,  where  it 

5o.  is  held  that  neither  the  legislature 

*5  Borough  of  Stamford  v.  Stam-  nor  the  municipality  has  the  pow- 

ford  H.  R.   Co.,  56   Conn.,   381iwl5  er  to  authorize  the  construction  of 

Atl.  749.  an  elevated  railroad  upon  a  pub- 


564  INJUNCTIONS.  [chap.  IX. 

pany  which  owns  property  abutting  upon  a  public  highway 
can  not  enjoin  the  maintenance  of  hack  stands  in  the  street 
adjacent  to  its  property  under  an  alleged  illegal  ordinance 
since  the  proper  remedy  is  an  action  at  law  for  the  damage 
sustained.  Nor  can  the  plaintiff  resort  to  equity  in  such 
case  for  the  protection  of  the  public  interests  involved  since 
such  wrongs  are  to  be  redressed  by  the  proper  public  author- 
ities.^^ 

§589  6.  Electric  railroad  in  street;  the  rule  in  New  York. 
The  operation  of  street  railways  by  means  of  the  modern  sys- 
tem of  overhead  trolley  wires,  which  has  superseded  prac- 
tically all  other  means  of  street  railway  locomotion,  consti- 
tutes no  new  or  additional  burden  upon  the  highway  but  is 
held  to  be  a  legitimate  and  proper  use  within  the  contempla- 
tion of  the  original  dedication,  and  the  abutting  owner  can 
therefore  not  enjoin  the  operation  of  such  a  road  in  the  high- 
way adjacent  to  his  premises.'  Whether  the  fee  be  in  the 
municipality  or  in  the  abutter,  the  original  dedication  must 
be  held  to  have  contemplated  new  and  improved  methods 
of  transportation,  and  so  long  as  the  new  system  does  not 
interfere  unreasonably  with  the  use  of  the  street  by  the 
adjacent  owner  or  by  the  public  generally,  no  case  is  pre- 
sented for  equitable  relief.^^     So  where  a  street  railway  com- 

lic  highway  without  compensation  765;    Thompson   v.    Manhattan   R. 

to  the  abutting  owner  for  the  in-  Co.,  130  N.  Y.,  360,  29  N.  E.,  264; 

jury  to  his  easement,  the  prevailing  McGean  v.  M.  El.  R.  Co.,  133  N.  Y., 

practice  is  to  grant  a  perpetual  in-  9,  30  N.  E,  647;    Woolsey  v.  N.  Y. 

junction    against    the  construction  El.  R.  Co.,  134  N.  Y.,  323,  30  N.  E., 

or    maintenance    of    the    elevated  387. 

structure,     unless    the     defendant  ■•'  Pennsylvania    Co.    v.    City    of 

sLall  pay  the  amount  of  the  dam-  Chicago,  181  111.,  289,  54  N.  E.,  825, 

age  sustained.     Pappenheim  v.  M.  53  L.  R.  A.,  223. 

El.  R.  Co.,  128  N.  Y.,  436,  28  N.  E.,  48  Taylor  r.   P..  K.  &  Y.  R.  Co., 

518,   13    L.   R.    A.,    401;    American  91   Me.,  193,   39   Atl.,   560,   64  Am. 

Bank-Note  Co.  r.  N.  Y.  El.  R.  Co.,  St.  Rep.,  216;   Howe  v.  West  End 

129  N.  Y.,  252,  29  N.  E.,  302,  50  Am.  R.  Co.,  167  Mass.,  40,  44  N.  E.,  386; 

&  Eng.  R.  Cas.,  298;  Hughes  r.  M.  Poole  r.  Fails  R.  E.  R.  Co.,  88  Md., 

El.  R.  Co.,  130  N.  Y.,  14,  25  N.  E.,  533,  41  Atl.,  1069;  Placke  v.  Union 


CHAP.  IX.]  STREETS   AND  HIGHWAYS.  565 

pany,  being  the  owner  of  its  right  of  way,  has  granted  to  a 
city  an  easement  consisting  of  a  right  of  way  along  a  por- 
tion of  such  land,  an  injunction  will  not  lie  to  restrain  another 
company,  acting  under  an  ordinance  from  the  city,  from 
operating  an  electric  street  railway  upon  such  right  of 
way  without  compensation,  since  such  a  use  does  not  con- 
stitute a  new  or  additional  servitude  and,  being  a  proper 
enjoyment  of  the  public  easement,  is  not  a  taking  of  private 
property  for  which  compensation  may  be  demanded.'*^  But 
in  New  York,  it  is  held,  contrary  to  the  otherwise  unani- 
mous rulings  of  the  courts,  that  the  construction  of  an 
electric  street  railway  upon  a  public  highway  is  a  new  use 
and  imposes  an  additional  servitude  and  that  the  lot  owner 
who  owns  the  fee  to  the  center  of  the  street  subject  to 
the  public  easement  may  therefore  enjoin  the  construction, 
of  such  a  road  until  compensation  has  been  made  him.^*'  In 
the  case,  however,  of  an  iuterurban  electric  railway  which 
runs  cars  at  great  speed  upon  raised  rails  and  having  for 
its  object  the  carrying  of  freight  as  well  as  passengers,  the 
operation  of  such  a  line  constitutes  an  additional  use  of  the 
street  and  may  be  enjoined  at  the  suit  of  the  abutting  owner 
in  whom  is  the  fee  to  the  highway  until  proper  compensa- 
tion is  made.^^ 

§  589  c.  Frontage  consent.  As  regards  the  right  to 
equitable  relief  against  the  construction  of  a  street  railway 
or  of  a  steam  or  elevated  railroad  in  a  public  highway  upon 
the  ground  that  the  ordinance  under  which  the  work  is 
proceeding  was  not  based  upon  the  necessary  frontage  con- 
sent as  required  by  law,  the  authorities  are  not  harmonious. 
The  better  doctrine  undoubtedly  is  that  so  long  as  the  use 
itself  to  which  the  street  is  to  be  subjected  is  a  proper  one 

D.  R.  Co.,  140  Mo.,  634,  41  S.  W.,  so  Peck  v.  Schenectady  R.  Co.,  170 

915.  N.  Y.,  298,  63  N.  E.,  357. 

49  Birmingham    T.    'Co.    v.    Bir-  ^i  Schaaf  v.  C,  M.  &  S.  R.  Co.,  6ft 

mingham  R.  &  E.  Co.,  119  Ala.,  137,  Ohio  St.,  215,  64  N.   E.,   145. 
24  So.,  502,  43  L.  R.  A.,  233. 


566 


INJUNCTIONS. 


[chap.  IX. 


witliin  the  contemplation  of  the  original  dedication,  and  the 
work  is  proceeding  under  color  of  an  apparently  valid 
ordinance,  the  question  of  the  right  thus  to  occupy  the  high- 
way, it  subsequently  appearing  that  the  necessary  front- 
age consent  had  never  been  obtained,  is  one  which  can  be 
raised  only  by  the  municipality  entrusted  with  the  control 
of  the  highway  in  a  direct  proceeding  brought  for  that  pur- 
pose, and  the  individual  property  owner  will  be  left  to  the 
pursuit  of  his  legal  remedy  for  such  damages  as  he  may  have 
sustained.^-  Upon  the  other  hand,  it  has  been  held  that 
the  abutting  owner  is  entitled'  to  relief  for  want  of  the 
necessary  frontage  consent,  where  it  is  shown  that  the  pro- 


52  Doane  v.  Lake  Street  El.  R. 
Co.,  165  111.,  510,  46  N.  E.,  520,  36 
L.  R.  A.,  97,  56  Am.  St.  Rep.,  265, 
followed  by  Blodgett  v.  Northwest- 
ern El.  R.  Co.,  26  C.  C.  A.,  21,  80 
Fed.,  601,  and  by  Atchison,  T.  & 
S.  F.  R.  Co.  V.  General  Electric  R. 
Co.,  50  C.  C.  A.,  424,  112  Fed.,  689; 
General  Electric  R.  Co.  v.  C.  &  W. 
I.  R.  Co.,  184  111.,  588,  56  N.  E., 
963;  Coffeen  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  28  C.  C.  A.,  274,  84  Fed., 
46.  To  the  same  effect,  see  Mc- 
Wethy  V.  A.  E.  L.  Co.,  202  111.,  218, 
67  N.  E.,  9.  Contra,  Beeson  v. 
City  of  Chicago,  75  Fed.,  880.  In 
the  Doane  case,  supra,  decided  in 
1897,  Mr.  Justice  Wilkin  uses  the 
following  language:  "It  is  insist- 
ed on  behalf  of  the  complainant, 
that  on  the  facts  set  up  in  his  bill 
the  ordinance  must  be  treated  as 
passed  without  the  required  con- 
sent of  abutting  owners,  and  there- 
fore illegal  and  void,  which  being 
true,  the  defendant  should  be  held 
as  proceeding  with  the  work  with- 
out any  authority  of  law  whatever, 
whereas    in    the   cases    referred    to 


lawful  consent  of  the  city  was 
shown.  The  real  ground  upon 
which  relief  by  injunction  is  de- 
nied in  such  cases  is,  that  the  use 
of  the  street  being  within  the  pur- 
poses for  w^hich  it  is  laid  out,  and 
therefore  a  proper  use,  the  right 
to  occupy  is  properly  a  question  be- 
tween the  defendant  and  the  mu- 
nicipality having  the  control  of 
its  streets  and  charged  with  the 
duty  of  keeping  them  free  from 
unlawful  obstructions,  or  between 
the  defendant  and  the  public  gen- 
erally, the  individual  being  left  to 
his  action  for  damages  for  any 
injury  resulting  to  his  property. 
He  has  no  standing  In  equity  on 
account  of  public  injury  or  for  the 
purpose  of  inflicting  punishment 
upon  the  defendant  for  its  wrong- 
ful acts.  He  can  only  invoke  that 
jurisdiction  in  order  to  protect  his 
property  from  threatened  injury. 
His  injury  is  a  depreciation  of  the 
property,  which  is  capable  of  being 
estimated  in  money  and  recover- 
able in  an  action  at  law,  therefore 
a  court  of  equity  will  not  interfere 
by  injunction." 


CHAP.  IX.]  STREETS   AND  HIGHWAYS.  567 

posed  work  will  result  in  irreparable  injury  for  which  there 
can  be  no  adequate  redress  in  an  action  at  law.^^ 

§590.  Injunction  pending  suit  to  test  leg-al  right;  insol- 
vency of  defendant.  Where  an  action  at  law  is  pending  for 
the  purpose  of  testing  the  legal  right  of  opening  a  highway, 
an  injunction  may  be  allowed  to  restrain  its  opening  pend- 
ing the  trial  of  right.^^  And  if  the  injury  resulting  from  the 
road  which  it  is  sought  to  restrain  is  likely  to  prove  irrepa- 
rable in  its  nature,  and  if  it  is  not  susceptible  of  adequate 
compensation  in  pecuniary  damages,  a  proper  case  is  pre- 
sented to  warrant  the  interference  of  equity.  Upon  similar 
grounds  of  the  inadequacy  of  the  remedy  at  law,  an  injunc- 
tion may  be  allowed  upon  allegations  of  defendant's  in- 
solvency, since  such  insolvency  would  render  futile  any 
attempt  to  recover  pecuniary  damages  for  the  loss  incurred.^^ 

.  §  591.    Apprehensions   of  future  injury,   when  insufficient. 

It  is  frequently  a  matter  of  difficulty  to  determine  how 
far  the  work  contemplated  must  have  proceeded  before  a 
court  of  equity  may  be  properly  called  upon  to  interfere.  It 
would  seem,  however,  that  apprehensions  of  future  injury, 
even  though  orders  may  have  been  given  for  the  preliminary 
steps  toward  the  construction  of  a  road,  do  not  constitute 
sufficient  ground  for  interference.  Thus,  the  presenting  of 
a  petition  to  the  commissioners  of  highways  for  a  private 
road  and  an  expressed  determination  on  their  part,  by  order- 
ing a  survey  of  the  road,  to  grant  the  petition,  will  not 
authorize  a  court  of  equity  to  enjoin  the  proceedings.^^ 

§  592.  Opening  of  public  highways ;  remedy  at  law. 
When  defendants,  the  road  commissioners  of  a  town,  acting 
as   public    officers   under   an   unfounded    claim   of   authority, 

53  General   Electric   Co.   v.   C.   &  ss  Champion  v.  Sessions,  1  Nev., 

L.  R.  Co.,  39  C.  C.  A.,  345,  98  Fed.,  478. 

907,  58  L.  R.  A.,  231.  56  Winkler    v.    Winkler,    40    111., 

5*  Champlin    v.    Morgan,    18    111.,  179. 
293. 


568  INJUNCTIONS.  [chap.  IX. 

are  endeavoring  to  appropriate  complainant's  land  to  the 
use  of  the  public  for  a  highway,  they  may  be  enjoined 
from  entering  upon  the  land  and  from  removing  trees, 
buildings  and  fences  therefrom.  And  in  such  case,  the 
court  having  properly  acquired  jurisdiction  for  the  purposes 
of  the  injunction  may,  in  order  to  prevent  a  multiplicity 
of  suits  and  to  do  complete  justice  between  the  parties, 
under  the  prayer  for  general  relief,  award  damages  for 
the  injuries  already  committed.^'^  And  a  property  owner 
may  enjoin  municipal  authorities  from  opening  a  road 
through  his  premises  under  proceedings  which  have  been 
judicially  determined  to  be  illegal.^^  So  where  an  order  of 
a  board  of  highway  commissioners  in  laying  out  a  high- 
way is  void  for  want  of  jurisdiction  because  of  a  failure  to 
give  the  notice  required  by  law,  the  giving  of  such  notice 
being  treated  as  a  jurisdictional  matter,  a  court  of  equity 
may  enjoin  further  proceedings  for  the  opening  of  the  high- 
way.^^  But  where  a  land  owner  has  joined  in  a  petition  to 
the  proper  authorities  for  the  opening  of  a  highway,  his 
failure  to  receive  notice  of  the  proceedings  will  not  warrant 
an  injunction  in  behalf  of  his  grantees.^^  Where,  however, 
the  law  affords  a  plain  and  adequate  remedy  for  persons 
aggrieved  by  the  action  of  highway  commissioners  in  the 
opening  of  a  public  highway,  one  who  stands  by  and  with- 
out objection  or  complaint  suffers  the  proceedings  to  go  on 
in  the  mode  provided  by  law  will  not  be  allowed  relief  by 
injunction.^'^      So   the   extension   of   a   highway   across   plain- 

•""•T  Winslow  V.  Nayson,  113  Mass.,  lie    to    prevent    the   opening   of   a 

411.  highway  upon  the  ground  of  irreg- 

^^  Rose  V.  Garrett,  91  Mo.,  65,  3  ularity  in  the  proceedings  of  the 

S.  W.,   828.  highway  commissioners,  unless  the 

.'-,!)  Frizell  v.  Rogers,  82  111.,  109;  proceedings  are  so  defective  as  to 

Adams  v.  Harrington,  114  Ind.,  66,  amount  to  a  nullity.     McDonald  r. 

14  N.  E.,  603.  Payne,  114  Ind.,  359,  16  N.  E.,  795. 

""Graham  v.  Flynn,  21  Neb.,  229,  «i  Sparling  v.  Dwenger,  60  Ind., 

31  N.  W.,  742.     And  in  Indiana  it  72.     See  also  Sunderland  v.  Martin, 

is  held  that  an  injunction  will  not  113  Ind.,  411,  15  N.  E.,  689. 


CHAP.  IX.]  STREETS   AND  HIGHWAYS.  560 

tiff's  land  will  not  be  enjoined  where  he  has  a  plain  and 
adequate  remedy  at  law  by  certiorariJ^- 

§  593.    Discretion   of  municipal   authorities   not   interfered 

with.  Courts  of  equity  are  averse  to  interfering  with 
the  exercise  of  the  discretion  or  judgment  of  public  officers 
in  matters  committed  to  their  care,  and  where  municipal  or 
town  authorities  are  charged  by  law  with  the  care  of  high- 
ways, and  are  empowered  to  remove  obstructions  there- 
from, equity  will  not  pass  in  review  upon  their  judgment  as 
to  wdiat  constitutes  an  obstruction.  Where,  therefore,  such 
officers  are  about  to  remove  a  private  railroad  track  which 
has  been  laid  across  a  highway  by  a  manufacturing  corpo- 
ration, they  will  not  be  enjoined  from  such  removel.'^^ 

§  594.  Railway  company  in  street ;  closing  streets ;  vacat- 
ing   streets;     plaintiff    must     own    adjacent    property.     It 

is  also  held  that  where  the  fee  of  the  streets  is  in  a 
city,  and  the  common  council  have  granted  to  a  railway 
company  a  right  to  construct  their  tracks  therein,  equity 
will  not,  at  the  suit  of  a  private  citizen  abutting  on  the 
street,  enjoin  the  operation  of  the  railroad  in  a  given 
street  because  of  an  excess  of  authority  in  the  use  of  that 
street,  but  will  leave  the  injury  to  be  redressed  by  the  pub- 
lic authority .'^^  Nor  will  a  court  of  equity,  at  the  suit  of  a 
citizen  who  shows  no  special  injury  to  himself  different 
from  or  other  than  the  general  injury  to  the  public,  enjoin 
the  temporary  closing  up  of  certain  streets  in  a  city  which 
have  never  been  used,  and  which  are  not  susceptible  of 
being  used  by  reason  of  their  never  having  been  improved."^^ 
So  a  private  property  owner,  owning  property  which  abuts 
on  a  public  street  at  a  considerable  distance  from  a  point 
where   it  is  proposed  by  the   city   authorities  to   vacate  the 

«2  Rockwell  V.  Bowers,  88   Iowa,  64  Patterson  r.  Chicago,  D.  &  V. 

88,  55  N.  W.,  1.  R.  Co.,  75  111.,  588. 

63  Bay  State  Brick  Company  v.  es  Prince  v.  McCoy,  40  Iowa,  533.. 
Foster,  115  Mass.,  431. 


570  iNJUNCTioxs.  [chap.  ix. 

street,  can  not  manitain  an  action  to  enjoin  such  vacation, 
when  he  shows  no  special  injury  which  will  be  sustained  by 
himself  as  distinguished  from  the  general  injury  to  the  pub- 
lic.^'* Nor  will  the  fact  that  the  purpose  of  the  proposed  va- 
cation of  the  street  is  to  devote  it  to  railroad  uses  warrant 
relief  by  injunction  in  such  case.*^^  And  the  fact  that  such 
property  owner  has  paid  assessments  for  improving  the 
street  gives  him  no  such  property  right  therein  as  to  entitle 
him  to  relief  in  equity  against  its  vacation.^^  Nor  will  the 
vacation  of  a  highway  be  enjoined  where  the  property  owner 
has  an  adequate  remedy  at  law  by  certiorariS'^  But  a 
municipal  corporation  which  has  no  power  to  vacate  high- 
ways may  be  enjoined  from  so  doing  at  the  suit  of  an 
abutting  owner  who  will  suffer  special  damage  different  in 
kind  from  that  inflicted  upon  the  public  generally.'*'  And 
the  proper  public  officers  may  enjoin  the  vacation  of  a 
street  for  purely  private  purposes,  and  the  relief  will  be 
granted  irrespective  of  the  question  of  pecuniary  damage.'''^ 
§  595.  Exercise  of  franchise.  In  conformity  with  the  gen- 
eral principle  that  equity  will  not  interfere  where  there  is 
ample  remedy  at  law,  an  injunction  will  not  be  allowed 
against  the  exercise  of  the  franchise  of  a  road  on  grounds 
which  should  be  urged  at  law.     Thus,  where  a  statute  gives 

66  City  of  Chicago  v.  Union  Build-  owners  to  enjoin  a  city  from  erect- 
ing Association,  102  III.,  379;  Mc-  ing  a  market  upon  land  formerly 
Gee's  Appeal,  114  Pa.  St.,  470,  8  platted  as  a  street,  but  which  has 
Atl.,  237.  And  in  Parker  v.  Catho-  been  vacated  as  a  street  and  used 
lie  Bishop,  146  111.,  158,  34  N.  E.,  by  the  city  for  more  than  thirty 
4/3,  the  same  principle  was  applied  years  for  "market  ^purposes,  see 
in  the  case  of  the  vacation  of  an  Cooper  v.  Detroit,  42  Mich.,  584,  4 
alley.    And  see  also  Heller  v.  Atch-  N.  W.,  262. 

ison,  T.  &  S.  F.  R.  Co.,  28  Kan.,  625.  «»  McLachlan   v.   Town  of   Gray, 

And  see,  post,  §§  757,  1301.  105  Iowa,  259,  74  N.  W.,  773. 

67  McGee's  Appeal,  114  Pa.  St.,  '^'  Texarkana  r.  Leach,  66  Ark., 
470.  8  Atl..  237.  40,  48  S.  W.,  807,  74  Am.  St.  Rep., 

OS  City  of  Chicago  v.  Union  Build-     67. 
ing  Association,  102   111.,   379.     As         '•  Smith    v.    McDowell,    148    111.. 
to  the  right    of   adjacent   property     51,  35  N.  E.,  141,  22  L.  R.  A.,  393. 


CHAP.  IX.]  STKEETS   AND   HIGHWAYS.  571 

a  special  remedy  at  law  against  a  plank-road  company  for 
neglecting  to  keep  its  road  in  repair,  equity  will  not  enter- 
tain jurisdiction  to  restrain  it  from  collecting  its  tolls  until 
the  proper  repairs  are  made,  but  will  leave  the  party  com- 
plaining to  avail  himself  of  his  legal  remedy." - 

§596.  Closing  highway.  A  court  of  chancery  may,  it 
would  seem,  restrain  the  commission  of  an  act  which  is 
likely  to  result  in  irreparable  injury  to  an  individual,  or  to 
be  prejudicial  to  the  public,  pending  proceedings  before  the 
proper  tribunal  to  determine  as  to  the  authority  to  com- 
mit the  act.  And  where  an  injunction  has  been  granted  to 
restrain  the  closing  up  of  a  road  until  defendant  can  show 
some  legal  authority  for  his  action,  it  will  not  be  dissolved 
in  the  absence  of  any  showing  of  such  authority.'''^  Where, 
hoW'Cver,  the  owner  of  real  estate  over  which  the  public  au- 
thorities, without  legal  right,  assert  a  claim  to  a  highway, 
attempts  to  take  possession  of  and  to  close  up  such  highway, 
but  is  interfered  with  by  the  authorities,  an  injunction  is 
the  appropriate  remedy  to  prevent  such  interference.'''^  But 
where  a  road  has  been  properly  discontinued,  the  forcible 
re-opening  thereof  and  the  removal  of  fences  necessary  in 
re-opening  it  will  not  warrant  a  court  of  equity  in  interfer- 
ing. Such  acts  are  regarded  as  mere  trespasses  for  which 
the  law  affords  ample  relief  and  they  will  not  be  enjoined  in 
equity.'^^ 

§  597.  Disfiguration  of  premises  by  proposed  road ;  land 
acquired  for  specific  purpose.  It  may  sometimes  happen 
from  the  peculiar  circumstances  of  a  particular  case  that 
an  injury,  ordinarily  susceptible  of  relief  at  law,  is  so 
irreparable  in  its  character  as  to  require  the  interposition  of 

T2  Commonwealth  v.  Wellsboro'  "*  Oliphant  v.  Commissioners  of 
&  T.  P.  R.  Co.,  35  Pa.  St.,  152.  Atchison  Co.,  18  Kan.,  386. 

73  Williamson  r.  Carnan,  1  Gill  &  '^  Nichols  r.  Sutton,  22  Ga.,  369. 
J.,  184.  But  see,  contra,   Lyle   v.  Lesia,   64 

Mich.,  16,  31  N.  W.,  23. 


572  INJUNCTIONS.    ■  [chap.  IX, 

the  strong  arm  of  equity  for  its  prevention.  Thus,  where  it 
is  alleged  in  the  bill  that  complainant's  premises,  through 
which  it  is  proposed  to  construct  a  road,  are  of  symmetrical 
proportions  and  easily  cultivated,  and  that  the  passage  of  the 
proposed  road  through  the  premises  will  greatly  disfigure 
them  and  increase  the  expense  and  difficulty  of  their  cultiva- 
tion, an  injunction  will  issue.  Under  such  circumstances  the 
relief  is  extended  on  the  ground  that  the  injury,  being  irrep- 
arable in  its  character  and  of  continuing  duration,  can  not. 
be  remedied  by  an  action  at  law  for  damages.'''^  So  equity 
will  sometimes  interfere  with  the  construction  of  public  works 
for  the  purpose  of  protecting  parties  in  the  enjoyment  of 
their  premises  for  the  particular  purposes  for  which  they 
were  acquired.  Thus,  commissioners  of  highways  will  be 
enjoined  from  laying  out  a  road  across  complainant's  rail- 
way track  and  grounds  acquired  for  engine-houses  and 
other  like  uses  of  the  railway.  The  land  having  been  ac- 
quired for  specific  purposes,  an  injunction  is  regarded  as 
the  proper  remedy  to  secure  its  quiet  enjoyment.''"^ 

§  597  a.  Unauthorized  opening  or  maintenance  of  high- 
way enjoined.  The  unauthorized  opening  of  a  highway 
'through  plaintiff's  premises  and  the  cutting  of  his  timber  and 
hedges  and  the  removal  of  his  fences  in  opening  the  highway 
constitute  sufficient  grounds  for  an  injunction,  even  though 
it  is  not  shown  that  defendants  are  insolvent,  the  injury 
in  such  case  being  regarded  as  irreparable.'^  And  a  road- 
overseer  may  be  enjoined  from  tearing  down  plaintiff's 
fences  and  destroying  his  trees  under  pretense  of  keeping 
open  an  alleged  highway  across  plaintiff' 's  j)remises,  when  in 
fact  no  such  highway  exists,  the  relief  being  granted  upon 
the  ground  that  such  unlawful  acts  might  become  the  founda- 

7'i  Champion  v.  Sessions,  1  Nev.,     nell,  24  N.  Y.,  345;   Mohawk  &  H. 
478.  R-  Co.  V.  Artcher,  6  Paige,  87. 

77  Albany  &  N.  R.  Co.  v.  Brow-        7«  McPike  v.  West,  71  Mo.,  199. 


'CHAP.  IX.]  STREETS   AND  HIGHWAYS.  573 

tion  of  adverse  rights,  and  also  for  the  prevention  of  a  multi- 
plicity of  suits.'''^ 

§  597  h.  Unauthorized  use  of  streets  by  gas  company  en- 
joined. A  land  owner  whose  lands  are  crossed  ])y  a  pub- 
lic highway  and  who  owns  the  fee  in  such  highway,  sub- 
ject to  the  public  easement,  may  restrain  a  corporation  from 
laying  and  maintaining  a  line  of  pipes  under  the  highway, 
for  the  purpose  of  supplying  natural  gas,  until  compensa- 
tion has  been  made  for  the  injury  to  his  property.^^  And  a 
gas  company  may  be  enjoined  at  the  suit  of  a  town  from 
excavating  in  the  streets  and  laying  its  pipes,  the  company 
having  received  no  license  or  authority  from  the  town.^^ 

§  597  c.  Injunction  against  steam-roller  in  highway. 
Where  a  gas  company  has  laid  its  pipes  in  a  highway, 
under  legislative  authority,  in  a  proper  manner,  due  regard 
being  had  for  wdiat,  at  the  time  of  laying  the  pipes,  was 
ordinary  traffic  and  reasonable  and  ordinary  means  of  re- 
pairing roads,  an  injunction  will  lie  to  restrain  the  munici- 
pal authorities  from  using  a  steam-roller  in  repairing  the 
road,  thereby  resulting  in  the  breaking  of  plaintiff's  pipes 
which  were  properly  laid  at  a  time  before  steam-rollers  came 
into  use.^- 

§  597  d.   Municipality  may  enjoin  improvement  contrary  to 

ordinance.  Where  an  ordinance  has  been  adopted  calling 
for  the  improvement  of  a  street  and  sidewalk  in  a  particular 
manner  and  an  abutting  property  is  proceeding  to  make 
the  improvements  in  a  manner  which  differs  materially 
from    the    specifications    and    requirements    of    the    ordinance, 

79  Chadbourne  v.  Zilsdorf,  34  §2  Alliance  &  D.  C.  G.  Co.  v.  Dub- 
Minn.,  43,  24  N.  W.,  308.  lin  County  Council,   (1901)  1  L.  R. 

80  Sterling's  Appeal,  111  Pa.  St.,  Ir.,  43;  Gas  Light  &  Coke  Co.  v. 
35,  2  Atl.,  105.  Vestry  of  St.  Mary  Abbott's,  15  Q. 

81  Citizens  G.  &  M.  Co.  v.  Town  B.  D.,  1. 
of  Elwood,  114  Ind.,  332,  16  N.  E., 

€24. 


574  INJUNCTIONS.  [chap.  IX. 

an  injunction  is  the  appropriate  remedy  upon  behalf  of  the 
municipality  to  restrain  such  unauthorized  action.^^ 

§  597  e.  Injunction  against  total  obstruction  of  street. 
Since  the  owner  of  land  abutting  upon  a  public  highway 
has,  as  appurtenant  to  his  property,  an  easement  consisting 
of  the  right  to  the  free  and  unimpeded  use  of  the  street  to 
its  full  width,  any  permanent  obstruction  whereby  he  is 
totally  or  practically  deprived  of  such  right,  even  though  the 
obstruction  be  under  legislative  authority,  constitutes  a  tak- 
ing of  private  property  without  compensation  and  will  be 
enjoined.  Thus,  where  the  defendant,  acting  under  a  legisla- 
tive and  municipal  grant,  is  erecting  a  stone  approach  to 
a  toll  bridge  which  is  of  such  a  character  as  to  leave  a 
space  in  front  of  plaintiff's  premises  so  narrow  as  to  render 
the  street  totally  unfit  for  its  legitimate  use,  an  injunction 
will  be  granted  until  the  plaintiff's  easement  is  condemned 
and  proper  compensation  made.  And  the  relief  is  granted 
in  such  case  regardless  of  the  ownership  of  the  fee  to  the 
highway.^^ 

§597/.  Telegraph  and  telephone  poles;  electric  light  poles 
and  wires.  As  to  the  right  of  the  owner  of  property  abut- 
ting upon  a  highway  to  restrain  the  location  of  telegraph  or 
telephone  poles  along  the  highway  without  compensation  being 
first  made  him  for  the  injury  caused  thereby,  the  authorities 
are  conflicting.  Upon  the  one  hand,  it  has  been  held  that  the 
location  of  such  poles,  whether  for  telephone  or  telegraph 
purposes,  constitutes  no  new  or  additional  use  of  the  high- 
way and  relief  by  injunction  is  accordingly  denied.^^     Upon 

S3  Drew  V.  Town  of  Geneva,  150  Co.,  60  Minn.,  539,  63  N.  W.,  Ill, 

Ind.,  662,  50  N.   E.,  871,  42  L.  R.  28   L.  R.  A.,  310;    Magee  v.  Over- 

A.,  814.  shiner,  150  Ind.,  127,  49  N.  E.,  951, 

«<  Willamette   Iron   Works  v.  O.  40  L.  R.  A.,  370.    See  this  last  case 

R.  &  N.  Co.,  26  Ore.,  224,  37  Pac.  for    an    exhaustive    review   of    the 

1016,  29   L.  R.  A.,  88,  46  Am.   St.  authorities      upon      the      question 

Rep.,  620.  whether  the  erection  of  such  poles 

»•''  Cater  v.   Northwestern   T.   E.  imposes    an   additional    servitude. 


CHAP.  IX.]  STKEETS   AND  HIGHWAYS.  575 

the  other  hand,  there  is  excellent  authority  for  holding  that 
where  the  fee  to  the  street  is  in  the  abutter,  the  erection  of 
such  poles  imposes  an  additional  servitude  upon  the  high- 
way for  which  the  abutting  owner  is  entitled  to  recover 
compensation  and  that  an  injunction  is  the  proper  remedy  to 
prevent  such  an  intrusion  until  such  compensation  is  ascer- 
tained and  paid.^*^  But  where  the  fee  to  the  highway  is  in 
the  municipality,  the  abutting  owner  can  not  enjoin  the  erec- 
tion of  electric  light  poles  and  the  stringing  of  wires  be- 
cause of  the  alleged  illegality  of  the  ordinance  under  which 
the  work  is  being  done,  where  he  shows  no  injury  different 
in  kind  from  that  suffered  by  the  public  generally .^'^  But 
the  owner  of  property  abutting  upon  a  private  alley  may 
enjoin  the  placing  of  such  poles  and  the  stringing  of 
wires  over  the  alley  for  the  purpose  of  furnishing  light  to 
adjoining  lot  owners,  where  the  fee  to  the  alley  is  in  the 
abutter  and  such  use  amounts  to  the  imposition  of  an  addi- 
tional servitude.^^ 

§  597  g.  Injunction  on  behalf  of  telephone  company  ag-ainst 
electric  street  railway.  Regarding  the  question  of  granting 
equitable  relief  upon  behalf  of  a  telephone  company  whose 
wires  are  strung  under  or  along  a  highway  to  restrain  the 
operation  of  an  electric  street  railway  upon  the  highway  and 
the  consequent  interference  with  its  telephone  service  result- 
ing from  the  grounding  of  the  defendant's  current  or 
from    the    induction    from    its    trolley   wires,    it    would    seem 

And  in  Coburn  v.  New  T.  Co.,  156  ss  stowers  v.  Postal  Tel.  Co.,  68 

Ind.,  90,  59  N.  E.,  324,  52  L.  R.  A.,  Miss.,  559,  9   So.  356,  12  L.  R.  A., 

671,  it  was  held  that  the  abutting  864,  24  Am.  St.  Rep.,  290;  Donovan 

owner  who  also  owned  the  fee  to  the  r.  Allert,  11  N.  Dak.,  289,  91  N.  W., 

center  of  the  street  could   not  en-  441,  58  L.  R.  A.,  775. 

join  the  construction  of  a  conduit  s?  McWethy  r.  A.  E.  L.  Co.,  202 

for  telephone  wires  along  the  edge  111.,  218,  67  N.  E.,  9. 

of  a  sidewalk  and  three  feet  from  f^"  Carpenter   v.   Capital    Electric 

plaintiff's  lot  line,  since  such  use  Co.,  178  111.,  29,  52  N.  E.,  973,  43  L. 

imposed  no  new  use  upon  the  high-  R.  A.,  645,  69  Am.  St.  Rep.,  286. 

way. 


576  INJUNCTIONS.  [chap.  IX. 

that  so  long  as  the  defendant  constructs  its  electrical  system 
in  a  reasonable  and  proper  manner,  taking  due  care  not  to 
interfere  unreasonably  with  the  rights  of  the  plaintiff,  no 
case  is  presented  for  the  interposition  of  equity.  Under 
such  circumstances,  the  operation  of  an  electric  street  rail- 
way is  regarded  as  a  legitimate  use  of  the  highway,  to  which 
its  use  for  the  purpose  of  telephone  service  is  to  be  held 
subservient,  and  the  fact  that  the  presence  of  the  electric 
current  seriously  interferes  with  the  proper  operation  of 
the  plaintiff's  lines  is  regarded  as  damnum  absque  injuria, 
and  equitable  relief  is  accordingly  denied.^*'  If,  upon  the 
other  hand,  the  defendant  constructs  and  operates  its  elec- 
tric system  with  a  wilful  or  wanton  disregard  of  the  rights 
of  the  plaintiff  and  without  the  exercise  of  ordinary  or 
reasonable  care  to  prevent  undue  interference  with  the  plain- 
tiff''s  service,  such  conduct  amounts  to  an  improper  use  of 
the  highway  and  an  abuse  of  its  franchise  by  the  defendant, 
and  will  accordingly  be  restrained  by  injunction.^'^ 

§597/(.  Injunction  on  behalf  of  electric  Ughting-  company 
against  rival  company  in  highway.  Where  an  electric  light- 
ing company  has  entered  into  a  contract  with  a  municipality 
for  the  lighting  of  its  streets  and  in  pursuance  thereof  has 
erected  its  poles  and  strung  its  wires  in  which  is  conducted 
a  current  of  low  tension,  and  the  defendant,  a  rivel  com- 
pan}',  under  permission  from  the  municipal  authorities,  afte^- 
Avards  erects  its  poles  and  strings  its  wires  in  such  a  way 
as  to  cause  imminent  danger  to  plaintiff' 's  property  and  to 
its    employees    resulting    from    the    proximity    of    defendant's 

8!»  Cumberland    T.    &    T.    Co.    v.  588.    And  see  Hudson  River  T.  Co. 

United    Electric    R.    Co.,    42    Fed.,  r.  Watervliet,  T.  &  R.  Co.,  121  N. 

2'(3,  12  L.  R.  A.,  544,  43  Am.  &  Eng.  Y.,  397,  24  N.  E.,  832. 
R.   Cas.,   194;    Cincinnati    I.    P.   R.         ""Birmingham   T.   Co.  v.   Soutli- 

Co.    V.    Telephone    Association,    48  ern  B.  T.  &  T.  Co.,  119  Ala.,  144,  24 

Ohio  St..  390,  27  N.  E.,  890.  12  L.  So.,  731. 
R.  A.,  534,  46  Am.  &  Eng.  R.  Cas., 


CHAP.  IX.]  STREETS   AND  HIGHWAYS.  577 

wires  and  the  fact  that  they  carry  a  current  of  very  high 
tension,  an  injunction  is  properly  granted  restraining  the 
defendant  from  maintaining  its  wires  in  such  a  way  as 
to  interfere  with  those  of  the  plaintiff.^^ 

91  Rutland  E.  L.  Co.  v.  M.  C.  E.     R.  A.,  821,  36  Am.  St.  Rep.,  868. 
Co.,  65  Vt.,  377,  26  Atl.,  635,  20  L. 


37 


CHAPTER  X. 

OF   INJUNCTIONS   AGAINST   RAILWAYS. 

I.    Pbinciples   Governing   the   Jurisdiction §  598 

II.     Failure  to  Compensate  fob  Right  of  Way 622 

I.    Principles  Governing  the  Jurisdiction. 

§  598.     Considerations   of  relative   inconvenience  and   injury. 

599.  Railway  company  held  to  strict  compliance;   unauthorized  ex- 

tension of  track. 

600.  Violation  of  conditions;   railway  and  canal  company. 

601.  Contest  as  to  possession. 

602.  Construction  of  railroads. 

603.  Change  of  route;   quo  warranto;   canal. 

604.  Injunction  against  issuing  free  passes. 

605.  Injunction  against   consolidation  or  extension. 

606.  Rights  of  bondholders. 

607.  Construction   of   bridges;    grade   crossings. 

608.  Breach  of  operating  contracts. 

609.  When    injunction   refused   against  street   railway. 

610.  Running  coaches  on  street  railway;   injunction  against  laying 

street  railway. 

611.  Condemnation  of  part  of  street  railway  by  another;   exclusive 

rights  of  way. 

612.  Filling  up  canal  by  railway  company. 

613.  Excess  of  authority  in  authorizing  street  railway. 

614.  Planting    trees;     construction    of    levees. 

615.  Cautious  exercise  of  jurisdiction. 

616.  Refusal  to  deliver  to  consignee;  imposing  additional  or  illegal 

charges;  use  of  wharves. 

617.  Judgment   creditors   enjoined   at  suit  of  bondholders. 

618.  Laches  and  acquiescence  of  property  owner  a  bar  to  relief. 

619.  Interference  with  right  of  way. 

620.  Obstruction  by  rival  road  enjoined. 

621.  Approach   to   bridge. 

621a.  Interchange    of    traffic;    unjust    discrimination;    unreasonable 
freight  rates;  stock  yards;    railroad  may  enjoin  enforcement 
of  unreasonable  maximum  freight  rates;  form  of  injunction. 
578 


CHAP.  X.]  AGAINST   RAILWAYS.  579 

§  6216.  Express  facilities;   sleeping  cars;   oil  company. 
621c.  Condemnation  for  other  companies,  or  for  improper  purposes. 
621d.  Injunction  against  monopoly;  securing  control  of  parallel  line. 
621e.   Injunction  on  behalf  of  railroad  against  ticket  brokers;  parties. 

§  598.  Considerations  of  relative  inconvenience  and  injury. 
Courts  of  equity  are  frequently  called  upon  to  inter- 
fere by  injunction  with  the  construction  of  railroads  in 
such  manner  or  under  such  circumstances  as  would  be  pro- 
ductive of  irreparable  injury.  In  exercising  its  jurisdiction 
over  cases  of  this  nature  a  court  of  equity  will  in  the  use 
of  a  sound  discretion  balance  the  relative  inconvenience 
and  injury  which  is  likely  to  result  from  granting  or  with- 
holding the  writ,  and  will  be  largely  governed  by  such  cir- 
cumstances in  determining  upon  the  relief.  And  where  an 
injunction  restraining  the  use  of  a  railway  would  not  only 
be  productive  of  great  injury  to  the  railway  company  and 
to  the  public,  but  would  resuli  in  no  corresponding  advan- 
tage to  any  one,  not  even  to  the  persons  asking  such  relief, 
it  will  not  be  granted.^  So  where  the  work  of  construct- 
ing a  railway  is  of  great  magnitude  and  one  involving  large 
expense,  if  it  is  apparent  that  the  injury  which  would  result 
to  defendant  by  granting  the  injunction,  in  case  the  result 
should  prove  it  to  have  been  wrongly  granted,  would  be 
greater  than  that  which  would  result  to  complainant  from  a 
refusal  of  the  injunction,  in  the  event  of  the  legal  right  being 
proved  to  be  in  his  favor,  the  court  will  not  interpose.^ 
And  where  the  continuance  of  an  interlocutory  injunction 
against  the  construction  of  a  railway  will  prevent  the  con- 
summation   of    a    costly    public    enterprise,    and    thereby    be 

1  Torrey  v.  Camden  &  A.  R.  Co.,  Booraem  v.  North  H.  C.  R.  Co.,  40 

3  C.  E.  Green,  293;     Western  Ry.  N.  J.  Eq.,  557,  5  Atl.,  106. 
V.  Alabama  G.  T.  R.   Co.,  96  Ala.,         2  Greenhalgh.  v.  Manchester  &  B. 

272,  11   So.,  483,  17  L.  R.  A.,  474.  R.  Co.,  3  Myl.  &  Cr.,  784;   Hacken- 

And  see  Greenhalgh  i\  Manchester  sack   Improvement  Commission   v. 

&  B.  R.  Co.,   3    Myl.  &    Cr.,    784;  New  Jersey   Midland   R.   Co.,  7  C. 

E.  Green,  94. 


580  INJUNCTIONS.  [chap,  X. 

productive  of  serious  inconvenience  to  the  public,  it  is 
proper  to  modify  the  injunction  so  as  to  allow  the  work  to 
proceed  upon  giving  adequate  security  to  pay  such  dam- 
ages as  may  be  occasioned  by  the  talking  and  occupation 
of  the  land  in  controversy.^  And  equity  will  not,  in  limine, 
at  the  suit  of  a  municipal  corporation,  enjoin  the  construc- 
tion of  a  railroad  under  legislative  authority  within  the 
limits  of  the  municipality,  when  the  legal  right  upon  which 
the  claim  to  relief  is  based  is  doubtful  and  unsettled.'* 

§  599.  Railway  company  held  to  strict  compliance ;  unau- 
thorized extension  of  track.  Courts  of  equity  are  inclined 
to  hold  railway  companies  to  a  strict  compliance  with  the 
terms  and  conditions  upon  which  they  have  been  permitted 
to  enter  upon  land  necessary  for  the  construction  of  their 
lines,  and  in  default  of  compliance  with  such  conditions  they 
are  not  entitled  to  the  protection  of  equity.  Thus,  where  a 
railway  company  is  forbidden  by  statute  to  construct  its 
road  upon  the  streets  of  an  incorporated  city  without  the 
assent  of  the  corporate  authorities,  and  when  the  city  has 
granted  a  right  of  way  to  the  company  upon  certain  express 
conditions,  which  have  not  been  fulfilled,  the  authorities  will 
not  be  enjoined  from  re-entering  and  taking  possession  of  the 
grounds  granted  the  railway  company,  the  privilege  of  re- 
entering in  case  of  default  on  the  part  of  the  company  hav- 
ing been  reserved  in  the  contract.^  And  the  unauthorized 
extension  of  its  track  by  a  railway  company  is  the  exercise 
of  a  valuable  franchise,  and  is  of  itself  sufficient  ground  for 
relief  by  injunction.'^ 

3  Coe  V.   New  Jersey  M.   R.   Co.,  r.  West  End  R.  Co.,  29  N.  J.  Eq.  (2 

28  N.  J.  Eq.  (1  Stew.),  27;    City  of  Stew.),  566. 

Portland    r.    Oregonian    R.    Co.,    7  •'''  Pacific  R.  Co.  v.  Leavenworth, 

Sawy.,  122;    Wellington  &  P.  R.  Co.  1  Dill.,  393. 

V.  Cashie  &   C.   R.   Co.,  116  N.  C,  o  People  r.  Third  Avenue  R.  Co., 

924,  20   S.  E.,  964.  45  Barb.,  63. 

■«  Long     Branch     Commissioners 


CHAP.  X.]  AGAINST   RAILWAYS.  581 

§  600.  Violation  of  conditions ;  railway  and  canal  com- 
pany. In  conformity  with  the  general  rule  laid  down  in 
the  preceding  section,  requiring  a  strict  compliance  on  the 
part  of  railway  companies  with  the  conditions  annexed  to 
the  grant  of  a  right  of  way,  it  has  been  held  that  where  a 
railway  has  been  permitted  to  enter  one's  land  and  con- 
struct its  road  on  condition  of  refraining  from  a  specific  in- 
jury irreparable  in  its  nature  and  not  easily  estimated  in 
damages,  an  injunction  Avill  lie  to  restrain  the  violation  of 
such  condition.'''  But  where,  as  between  a  railway  and  canal 
companj^  an  injunction  has  been  granted  restraining  the 
one  from  locating  its  route  on  the  ground  of  prior  and  par- 
amount right  of  choice  in  the  other,  if  it  appears  that  the 
defendant  is  properly  entitled  to  a  priority  of  choice  in  the 
selection  of  ground  for  its  route,  the  injunction  will  be  dis- 
solved.^ 

§  601.  Contest  as  to  possession.  The  sole  object  of  a  pre- 
liminary injunction  being  to  protect  the  property  or  rights 
in  controversy  until  a  final  hearing  upon  the  merits,  a  court 
of  equity  will  not  interfere  to  take  property  out  of  the 
possession  of  one  party  and  put  it  into  the  possession  of 
another.  And  where  complainants  allege  that  they  are 
entitled  to  the  posssession  of  a  railway,  but  that  defendants 
are  in  actual  possession  under  claim  of  right,  it  is  improper 
to  restrain  defendants  from  using  the  road  until  the  right 
can  be  determined.^ 

§  602.  Construction  of  railroads.  The  construction  of  a 
railway  in  a  city  is  not  regarded  as  a  nuisance  per  se  and 
the  laying  of  its  track  along  a  public  street  will  not  be 
enjoined    on    that    ground.^ *^      Nor    can    a    private    property 

■  Unangst's    Appeal,    55    Pa.    St.,  53  Pa.  St.,  224;     Minneapolis  &  S. 

128.  L-  R.  Co.  V.  C,  M.  &  St.  P.  R.  Co., 

8  Canal     Company     v.     Railroad  116  Iowa,  681,  88  N.  W.,  1082. 
Company,  4  Gill  &  J.,  1.  i"  New  Albany    &    S.    R.  Co.  v. 

9  Farmers  R.  Co.  v.  Reno  R.  Co.,  O'Daily,   12    Ind.,    551;     Fulton  v. 


582  INJUNCTIONS.  [chap.  X. 

owner,  abutting  upon  and  owning  the  fee  to  the  center  of 
a  street,  enjoin  the  construction  of  an  ordinary  surface 
railway  in  the  street,  upon  the  ground  of  nuisance,  when  he 
shows  no  special  injury  which  will  result  to  him  from  such 
construction.il  And  the  owner  of  property  abutting  upon  a 
street  the  fee  of  which  is  in  the  municipality  can  not  enjoin 
the  operation  of  a  loop  of  a  street  railway  in  the  highway 
upon  the  ground  that  it  impairs  his  easement,  since  the 
injury  thus  inflicted  is  susceptible  of  compensation  in 
an  action  at  law  for  damages.^-  Such  control  may, 
however,  be  exercised  by  a  court  of  equity  over  the  par- 
ticular manner  of  construction  as  is  necessary  for  the  pre- 
vention of  serious  and  irreparable  injury.  And  where  a 
railway  company  is  erecting  an  arch  over  a  mill  race  in 
such  manner  as  to  be  productive  of  serious  injury  to  the 
mill,  it  may  be  enjoined  from  making  its  arch  of  less  than 
certain  specified  dimensions,  such  as  will  obviate  the  injury.^-^ 
So  where  a  railway  company  is  proceeding  to  enter  upon 
private  property  for  the  purpose  of  locating  its  road,  an 
injunction  may  be  granted  until  the  opening  of  a  street 
through  which  the  road  is,  by  its  act  of  incorporation,  re- 
quired to  pass.i^  And  a  railway  company  which  is  author- 
ized by  law  to  construct  its  road  across  any  public  highway, 
upon  condition  that  it  shall  restore  the  highway  to  its 
former  state  of  usesfulness,  may  be  enjoined  from  construct- 
ing its  road  lengthwise  in  the  highway,  and  from  intersect- 
ing it  at  such  an  angle  as  to  render  it  dangerous  to  the 
public,  and  may  also  be  compelled  to  remove  obstructions 
upon  failure  to  comply  with  the  conditions  required  by  the 
court   as   to   the   method    of   construction.^^     And   a   railway 

Short  Route  R.  T.  Co.,  85  Ky.,  640,  '■'J  Coats     v.    Clarence   R.   Co.,    1 

4  S.  W..  332.  Russ.  &  M.,  181. 

iiGarnett  r.  Jacksonville,  St.  A.  I'Jarden  r.   Philadelphia,  W.   & 

&  H.  R.  R.  Co.,  20  Fla.,  889.  B.  R.  Co.,  3  Whart,  502. 

12  Haskell    r.    Denver  T.    Co.,   23  i!"'  State    r.    Dayton    &    S.    E.    R. 

Col.,  60,  46  Pac,  121.  Co..  36   Ohio  St.,  434. 


CHAP.  X.]  AGAINST   RAILWAYS.  583 

company,  having  similar  powers,  may  be  compelled  by 
mandatory  injunction  to  restore  a  highway  to  its  former 
condition  of  usefulness,  the  suit,  in  such  case,  being  prop- 
erly brought  by  the  town  when  it  is  charged  by  law  with 
the  duty  of  keeping  in  repair  all  public  highways.^ ^ 

§  603.  Change  of  route ;  quo  warranto ;  canal.  Where  a 
railway  company  has  obtained  municipal  subscriptions  in 
aid  of  the  construction  of  its  road,  upon  its  agreement 
to  construct  it  upon  a  given  route  and  to  certain  pre- 
scribed points,  the  company  being  of  doubtful  financial 
ability  to  construct  its  main  line  as  agreed,  equity  may  in 
behalf  of  the  municipality  enjoin  the  construction  of  a  branch 
road  by  the  company  which  is  likely  to  render  it  incapable  of 
completing  its  main  line  as  agreed.^ '^  Where,  however,  a 
railway  company  is  empowered  to  build  three  different  lines 
of  road,  and  after  constructing  one  of  the  three  it  abandons 
the  others,  upon  a  bill  by  a  shareholder  to  enjoin  the 
application  of  its  funds  except  with  a  view  to  the  con- 
struction of  the  three  lines  as  authorized,  the  court  may 
properly  weigh  the  relative  convenience  and  inconvenience 
to  the  parties,  and  refuse  the  injunction  when  it  is  apparent 
that  more  inconvenience  will  result  from  granting  than  from 
refusing  it.  And  additional  ground  for  refusing  the  relief 
in  such  case  is  found  in  the  fact  that  complainant  has 
acquiesced  in  the  abandonment  for  a  considerable  period  of 
time.i^  So  the  fact  that  a  railway  company,  which  is 
organized  to  build  a  specified  line  of  road,  intends  to  con- 
struct but  a  part  of  such  line  instead  of  the  whole  affords  no 

16  Town  of  Jamestown    v.    Chi-  however,   that    this    decision    was 

cago,  B.  &  N.  R.  Co.,  69  Wis.,  648,  given  under  a  statute  prohibiting 

34  N.  W.,  728.    See  County  of  Cook  any     railway    from    diverting    its 

V.  Great  Western   R.   Co.,  119   III.,  road    from    a    municipality    from 

218,  10  N.  B.,  564.  which  it  had  received  aid. 

IT  Town  of   Platteville  v.  Galena  is  Hodgson   i\   Earl   of  Powis,   1 

&  Southern  Wisconsin  R.  Co.,    43  De  Gex,  M.  &  G.,  6. 
Wis.,  493.       It  is   to  be  observed. 


584  iNJUNCTioxs.  [chap.  X. 

ground  for  enjoining  such  construction.^^  Nor  does  the 
fact  that  proceedings  are  pending  against  the  railway  com- 
pany in  quo  warranto  to  procure  its  dissolution  afford  any 
ground  for  such  an  injunction.-^  Nor  will  the  relief  be 
granted  to  restrain  persons,  who  are  authorized  by  act  of 
parliament  to  construct  a  canal,  from  cutting  through  their 
own  lands  for  that  purpose,  upon  the  ground  of  insufficiency 
of  their  funds  for  the  completion  of  the  undertaking.-^ 

§  604.  Injunction  against  issuing  free  passes.  Upon  a 
bill  by  a  shareholder  in  a  railway  company  seeking  to  enjoin 
the  company  from  issuing  free  passes  to  members  and  officers 
of  a  state  legislature  upon  the  ground  of  diminishing  the 
revenues  of  the  company,  the  fact  that  it  has  previously 
issued  such  passes  is  not  of  itself  ground  for  the  relief,  it 
not  being  shown  that  the  company  intends  issuing  them  in 
the  future.  And  the  mere  fears  and  apprehensions  of  the 
plaintiff,  in  such  case,  are  not  sufficient  to  warrant  the  relief, 
but  the  court  itself  must  be  satisfied  that  the  wrong  is  about 
to  be  committed  before  it  will  interfere. -- 

§  605.  Injunction  against  consolidation  or  extension.  An 
injunction  is  the  appropriate  remedy  in  behalf  of  a  share- 
holder in  a  railway  company  to  prevent  its  consolidation  with 
another  company,  when  complainant  has  not  consented  to 
such  consolidation.  And  in  such  case  complainant  is  not 
estopped  from  relief  bj^  the  fact  that  as  a  director  of  the 
company  he  acquiesced  at  a  meeting  of  directors  in  proceed- 
ings preliminary  to  the  consolidation  and  preliminary  to  a 
vote  of  the  shareholders  upon  the  question.-^  But  a  stock- 
holder can  not  enjoin  an  extension  of  the  line  of  a  railway 
company     by     its     directors,     when    their    action    in    making 

1!' Aurora  &  C.  R.  Co.  v.  City  of  22  Goodwin   r.   New  York,  N.   H. 

Lawrenceburgh,    56    Ind.,    80.  &  H.  R.  Co.,  43  Conn.,  494. 

'^0  Id.  -■■'  Mowrey    v.    Indianapolis   &   C. 

^1  Mayor  v.  Pemberton,  1  Swanst.,  R.  Co.,  4  Bissell,  78. 
244. 


CHAP.  X.]  AGAINST    RAILWAYS.  585 

such  extension  is  within  the   scope  of  the   corporate  powers 
of  the  company  and  is  free  from  fraud.-** 

§  606.  Rights  of  bondholders.  One  of  several  bondholders 
secured  by  a  railway  mortgage  will  not  be  allowed  an  in- 
terlocutory injunction  to  prevent  the  transfer  to  a  foreign 
railway  corporation  of  so  much  of  the  mortgaged  property  as 
is  located  within  the  state,  when  the  property  is  of  such  a 
nature  that  it  can  not  be  removed  from  the  state,  and  when 
no  formal  transfer  can  injure  plaintiff  pending  his  action, 
the  property  still  remaining  in  the  state  and  subject  to  the 
final  decree  in  the  cause. -^  But  where  by  the  terms  of  a 
mortgage  securing  the  bonds  of  a  railway  it  is  provided  that 
all  subsequently  acquired  property  shall  be  subject  to  the 
mortgage,  the  holders  of  such  bonds,  in  an  action  brought 
in  behalf  of  themselves  and  all  others  similarly  situated,  maj^ 
enjoin  the  sale  or  disposition  of  iron  rails  subsequently 
acquired  by  the  company,  which  have  been  pledged  to  per- 
sons having  notice  of  the  equities  of  the  bondholders,  but 
are  not  entitled  to  such  injunction  as  against  pledgees  ad- 
vancing money  and  taking  the  rails  as  security  in  good 
faith,  and  without  notice  of  complainants'  equities.-*^  And 
a  railway  company  may  be  enjoined,  upon  a  bill  filed  in  be- 
half of  its  mortgage  bondholders,  from  aiding  and  encourag- 
ing in  the  building  of  another  road  which  would  operate  to 
divert  business  from  the  former  road,  and  thereby  depreciate 
the  security  for  its  bonds,  the  interest  on  the  bonds  being; 
unpaid  and  largely  in  arrears.^'^ 

§  607.  Construction  of  bridges ;  grade  crossings.  A  rail- 
way  company   which   is    entitled   to    construct   a   bridge   over 

2^  Sims  V.  Street  Railroad  Co.,  37  Wilds  v.  St.  Louis,  A.  &  T.  H.  R. 

Ohio  St.,  556.    As  to  the  right  of  a  Co.,  102  N.  Y.,  410,  7  N.  E.,  290. 

shareholder  to    restrain    the    com-  25  McHugh  r.  Boston,  H.  &  E.  R. 

pany    from    paying    interest    upon  Co.,  66  Barb.,  612. 

its    mortgage     bonds    which    have  20  Weetjen   v.    St.   Paul    & '  P.   R. 

been  redeemed  by  and  are  held  to  Co.,  4  Hun,  529. 

the  credit  of  a  sinking  fund,  see  27  Pullan  v.  Cincinnati  &  Chicago 

Air  Line  R.  Co.,  4  Bissell,  35. 


586  INJUNCTIONS.  [chap.  X. 

the  track  of  another  road  may  have  an  injunction  to  restrain 
the  latter  company  from  interfering  with  such  construe- 
tion.28  And  in  the  absence  of  express  legislation  regulating 
the  manner  in  which  one  railway  shall  cross  another,  a  court 
of  equity  may  properly  entertain  jurisdiction  of  the  matter, 
and  may  enjoin  the  new  road  from  crossing  the  old  one  at 
grade,  when  it  is  for  the  manifest  interest  and  advantage 
of  both  roads  that  the  one  should  cross  the  other  at  a  dif- 
ferent level  or  grade.-^  So  it  is  held  that  a  provision  in 
a  state  constitution  authorizing  a  railway  company  to  in- 
tersect, connect  with,  or  cross  any  other  railroad  is  not 
self-acting  and  does  not  authorize  a  company  to  intersect 
the  tracks  of  another  in  its  own  discretion.  An  injunction 
will  therefore  lie  to  prevent  such  crossing  until  defendant's 
right  has  been  fixed  either  by  negotiation  or  by  legal  pro- 
ceedings.^*^ But  equity  will  not  enjoin  a  railway  company 
from  proceeding  under  the  eminent  domain  act  of  the  state 
to  acquire  a  right  of  way  across  complainant's  tracks,  de- 
fendant being  authorized  under  the  law  of  the  state  to  effect 
such  crossing,  and  no  injury  being  shown  as  likely  to  result 
from  the  proposed  crossing  which  can  not  be  adequately  com- 
pensated in  damages.31 

§  608.     Breach  of  operating  contracts.     An  injunction  has 
been  allowed  to  restrain  a  railway  company  from  preventing 

28  Great,  etc.,  R.  Co.  v.  Clarence  Texas  &  St.  L.  R.  Co.,  4  Woods,  360; 

R.   Co.,   1  Coll.,   507.     And   the  in-  S.   C,  10  Fed.,  497. 

junction    in    this     case     seems     to  si  Lake  Shore  &  M.  S.  R.  Co.  v. 

have  been  granted,  in  effect,    as    a  Chicago  &  W.  I.  R.  Co.,  97  111.,  506. 

mandatory  injunction,    restraining  As  to  the  right  to  enjoin  a  grade 

defendant      from      continuing      to  crossing  and   as   to   the    effect    of 

maintain  and  uphold  certain  walls  non-user  of  defendant's  franchises 

erected    by    it,    whereby  plaintiffs  for  a  series  of  years,  in  such  case, 

were  prevented  from  constructing  see  Western  P.  R.  Co.'s  Appeal,  104 

their  bridge.  Pa.  St.,  399.    As  to  the  right  to  en- 

20  Chicago  &  N.  W.  R.  Co.  v.  Chi-  join  a  grade  crossing    under    the 

cage  &  P.  R.  Co..  6  Bissell,  219.  laws  of  Iowa,  see  H.  &  S.  R.  Co.  v. 

ao  Missouri,    K.    &    T.   R.   Co.  v.  C,  St.  P.  &  K.  C.  R.  Co.,  74  Iowa, 

554,  38  N.  W.,  413. 


CHAP.  X.]  AGAINST    KAIL  WAYS.  587 

the  plaintiff  company  from  using  defendant's  line  in  the 
manner  and  upon  the  terms  provided  in  an  agreement  be- 
tween the  two  companies.^-  And  where  two  railway  com- 
panies had  entered  into  an  agreement  for  using  interchange- 
ably each  other's  roads  upon  certain  prescribed  terms,  an 
injunction  was  granted  to  restrain  one  of  the  companies  from 
depriving  the  other  of  the  use  of  its  road  under  the  con- 
tract.^^ 

§  609.    When  injunction  refused  against  street  railway.     A 

street  railway  company,  which  is  authorized  by  its  charter 
to  la}^  its  tracks  in  a  given  street  in  a  city,  but  which  has 
no  exciusive  authority  under  the  terms  of  its  charter,  can 
not  maintain  an  action  to  restrain  another  company  from 
laying  and  oj^erating  its  tracks  under  an  authority  conferred 
by  its  charter.  In  such  a  cas^e,  even  if  there  be  an  excess 
of  power  on  the  part  of  the  defendant  company,  the  public 
alone  can  interfere  by  injunction  to  restrain  its  operations; 
and  the  plaintiff  company,  having  no  exclusive  rights  in 
such  street,  can  not  interfere  to  protect  the  public  interest, 
unless  some  actual  interference  with  its  own  tracks  is  done 
or  threatened.^^  So  a  street  railway  company  which  is  au- 
thorized by  a  city  to  operate  its  road  through  a  given  street, 
but  which  has  no  exclusive  right  therein,  is  not  entitled  to 
an  injunction  to  restrain  another  company,  authorized  by 
the  city,  from  building  its  line  of  road  upon  the  street.*"*^ 
And  since  the  grant  to  a  railroad  company  of  the  privilege 
of  laying  its  tracks  upon  or  across  a  public  highway  does 
not  give  it  the  exclusive  right  to  the  use  of  the  street  but 
merely  the  right  to  its  use  in  common  with  the  public  gen- 

"■;  Great  Northern  R.  Co.  r.  Lan-  Co.  v.  Central  C.  R.  Co.,  67  Barb., 

cashire  &  Y.  R.  Co.,  1  Sm.  &  Gif.,  315;    S.  C,  4  Hun,  630. 

81.  •■•'•  New   Orleans    City    R.    Co.  v. 

■•■•■■i  Great  Northern  R.  Co.  v.  Man-  Crescent  City  R.   Co.,  23   La.  An., 

Chester  R.   Co.,   5   De   Gex   &   Sm.,  759.     See  also  Kinsman  Street  R. 

138.  Co.  r.  Broadway  &  N.  S.  R.  Co.,  36 

3i  Christopher  &  Tenth  Street  R.  Ohio  St.,  239. 


588  INJUNCTIONS.  [chap.  X. 

erally,  it  can  not  enjoin  a  street  railway  company  from  laying 
its  tracks  in  the  highway  across  its  own.^^*  But  in  a  contest 
between  two  railway  companies,  each  claiming  a  right  of  way 
in  a  street,  a  preliminary  injunction  may  be  properly  granted 
to  maintain  plaintiff  in  its  possession,  but  not  to  oust  a  com- 
pany already  in  possession.^'''  A  street  railway  company  can 
not,  however,  enjoin  the  moving  of  a  building  along  its 
tracks  when  the  interruption  caused  thereby  to  its  business 
is  but  temporary  and  the  injury  may  be  readily  determined 
and  may  be  compensated  in  damages. ^^ 

§610.  Running  coaches  on  street  railway;  injunction 
against  laying  street  railway.  It  is  also  held  that  a  street 
railway  company,  claiming  the  exclusive  right  to  run  cars 
upon  its  road  as  laid  in  the  streets  of  a  city,  is  not  en- 
titled in  limine  to  an  injunction  restraining  vehicles,  such 
as  coaches,  from  using  the  road  of  complainant  in  the  streets, 
under  a  claim  of  right  to  exclude  from  the  street  competing 
vehicles,  w^hen  the  right  asserted  by  complainant  is  unde- 
termined and  is  dependent  upon  disputed  propositions  of 
law.^'^  Where,  however,  plaintiff',  a  railway  company,  had 
maintained  its  track  upon  a  strip  of  land  in  a  city  street 
for  more  than  twenty  years,  claiming  title  thereto  by  grant 
from  the  original  owners  at  a  period  prior  to  the  incorpora- 
tion of  the  city,  and  had  obtained  an  interlocutory  injunction 
restraining  defendants  from  laying  a  street  railway  beside 
plaintiff"s,  under  a  grant  from  the  city  authorities,  the  court 
refused  to  dissolve  the  injunction  upon  bill  and  answer,  and 

30  Chicago,  B.  &  Q.  R.  Co.  v.  W.  La.  An.,  561.    As  to  the  right  of  a 

C.  S.  R-  Co.,  156  111.,  255,  40  N.  B.,  street  railway   company   to   enjoin 

1008,    29   L.  R.  A.,    485;     General  a    steam     railway    company    from 

Electric  R.  Co.  v.  C.  &  W.  I.  R.  Co.,  crossing  its  tracks  in   the  streets 

184  111.,  588,  56  N.  E.,  963;  Atchi-  of  a  city,    see    Atchison  Street  R. 

son,  T.  &  S.  F.  R.  Co.  v.  General  Co.  r.  Missouri  P.  R.  Co.,  31  Kan., 

Electric  R.  Co.,  50  C.  C.  A.,  424,  112  660,  3  Pac,  284. 
Fed.,  689.  ^^  Fort  Clark  H.  R.  Co.  r.  Ander- 

•li  New  Orleans  &  N.  E.  R.  Co.  v.  son,  108  111.,  64. 
Mississippi,  T.  B.  &  L.  R.  Co.,  36         ai>  Citizens  Coach  Co.  v.  Camden 


CHAP.  X.]  AGAINST   RAILWAYS.  589 

retained  it  until  the  final  hearing,  in  order  that  the  ques- 
tion of  title  might  be  properly  determined. ^"^ 

§611.  Condemnation  of  part  of  street  railway  by  another; 
exclusive  rights  of  way.  In  Illinois  it  is  held  that  a  horse 
railway  company  can  not,  under  the  eminent  domain  act  of 
the  state,  acquire  for  its  own  use  by  proceedings  for  con- 
demnation a  portion  of  a  street  railway  previously  con- 
structed by  another  company  and  in  successful  operation, 
and  by  thus  taking  a  fragment  of  defendant's  road  destroy 
its  usefulness  and  impair  defendant's  franchise;  and  a  per- 
petual injunction  will  lie  to  prevent  such  injury  to  and  ob- 
struction of  defendant's  property  and  franchise.^^  And  it  is 
held  in  New  York,  that  when  a  railway  company  files  a  map 
and  survey  of  its  proposed  route  and  gives  the  required 
notice  to  property  owners  affected  by  such  location,  it  ac- 
quires a  right  to  construct  its  line  upon  such  route  to  the 
exclusion  of  all  other  companies.  Another  railway  company 
may,  therefore,  be  enjoined  from  laying  tracks  upon  such 
proposed  route  so  as  to  obstruct  or  interfere  with  the  con- 
struction of  plaintiff's  road."*-  But  a  railway  company 
claiming  title  as  lessee  of  another  company  to  certain  lands 
and  rights  of  way  which  have  been  abandoned  for  railroad 
purposes,  its  lease  being  held  invalid,  can  not  enjoin  another 
company  from  entering  upon  and  constructing  its  road  over 
the   premises   in   question.^^ 

§  612.  Filling  up  canal  by  railway  company.  When  a  rail- 
way company,  without  authority,  is  filling  up  the  location  of 

Horse  R.   Co.,    29    N.    J.    Eq.     (2  Western  N.  C.  R.  Co.  v.  Georgia  & 

Stew.),  299.  N.  C.  R.   Co.,  88  N.  C,  79.     As  to 

*o  Camden  &  A.  R.  Co.  v.  Atlan-  the  right  of  highway  commission- 
tic  City  P.  R.  Co.,  11  C.  E.  Green,  ers  in  New  York  to  enjoin  a  street 
69.  railway  company  from  abandoning 

•41  Central  City  H.  R.  Co.  v.  Fort  a  portion  of  its  route,  see  Moore  v. 

Clark  H.  R.  Co.,  81  111.,  523.  Brooklyn  City  R.  Co.,  108  N.  Y.,  98, 

*2  Rochester,   H.   &  L.   R.   Co.  v.  15  N.  E.,  191. 

New  York,  N.  E.  &  W.  R.  Co.,  110  «  Troy  &  B.   R.  Co.    r.    Boston, 

N.  Y.,  128,  17  N.  E.,  680.     And  see  H.  T.  &  W.  R.  Co.,  86  N.  Y.,  107. 


590  INJUNCTIONS.  [CIIAP.  X. 

a  public  canal,  owned  by  a  state,  in  such  manner  as  to  en- 
tirely obstruct  its  use,  an  injunction  will  lie  to  restrain 
such  action.  And  in  such  a  case,  the  company  acting  ii? 
excess  of  its  powers,  no  question  of  damage  is  presented, 
but  simply  a  question  of  the  invasion  of  plaintiff's  right. 
It  is  not  necessary,  therefore,  that  any  irreparable  injury 
should  be  shown  to  warrant  the  relief,  nor  can  defendant 
in  such  case  justify  its  action  or  prevent  an  injunction 
upon  the  ground  that  the  part  of  the  canal  in  controversy 
is  practically  abandoned.^^ 

§  613.  Excess  of  authority  in  authorizing  street  railway. 
The  authority  of  the  body  granting  permission  for  the  con- 
struction of  a  road  may  be  called  in  question,  and  it  would 
appear  that  where  such  authority  has  been  exceeded  the 
work  may  be  enjoined. •^^  Thus,  where  the  common  council 
of  a  city  has  exceeded  its  power  in  authorizing  the  construc- 
tion of  a  street  railway  and  its  operation  for  an  indefinite 
period  of  time,  the  construction  of  the  road  may  properly 
be  enjoined.'**^ 

§  614.  Planting  trees ;  construction  of  levees.  Under  the 
authority  of  equity  to  interfere  for  the  prevention  of  irrepar- 
able mischief,  a  railway  company  may  be  enjoined  from 
planting  trees  so  close  to  one's  land  as  to  overshadow  it 
and  to  cause  the  roots  to  spring  up  to  the  damage  of  the 
soil.'*'''  And  where  a  statute  provides  that  in  the  construc- 
tion of  levees  over  private  property  just  compensation  shall 
be  paid  to  the  owners  for  damages  thereby  incurred,  an  in- 
junction may  properly  issue  to  stay  proceedings  until  the 
damages  have  been  ascertained  and  paid  according  to  law.*^ 

§  615.  Cautious  exercise  of  jurisdiction.  From  the  peculiar 
nature   of  woi-ks   of  public   improvement   and  the   serious  in- 

**  Commonwealth  v.  Pittsburg  &  *«  Milhau  r.  Sharp,  27  N.  Y.,  611. 

C.  R.  Co.,  24  Pa.  St.,  159.  ^t  Brock   r.   Connecticut,   etc.,   35 

^■'  Milhau  V.  Sharp,  27  N.  Y.,  611;  Vt.,  373. 

Hays  V.  Jones,  27  Ohio  St.,  218.  ^8  Horton  v.  Hoyt,  11    Iowa,  496 


CHAP   X.]  AGAINST   RAILWAYS.  591 

jury  that  may  result  from  any  unwarranted  interference 
with  their  construction,  the  jurisdiction  in  restraint  of  such 
works  is  exercised  with  great  caution,  keeping  constantly 
in  view  the  damage  that  may  result  from  improperly  re- 
straining their  operation.  Except  in  cases  of  peculiar  hard- 
ship, an  injunction  should  not  be  granted  against  the  con- 
struction of  a  public  work  before  the  coming  in  of  the 
answer,  since  the  granting  of  an  injunction  upon  every  ex 
parte  bill  which  might  be  presented  would  place  such  works 
at  the  mercy  of  every  landed  proprietor  through  whose 
premises  they  pass.'*^ 

§616.  Refusal  to  deliver  to  consignee;  imposing  additional 
or  illegal  charges;  use  of  wharves.  Where,  however,  a  rail- 
way company  in  its  capacity  as  a  common  carrier  refuses 
to  make  a  personal  delivery  of  goods  to  a  consignee,  the 
fact  that  a  statutory  remedy  has  been  provided  will  not  pre- 
vent a  court  of  equity  from  entertaining  jurisdiction  of 
the  matter  if  the  statutory  remedy  is  inadequate.  And  where 
the  course  pursued  by  the  carrier  is  such  as  to  greatly  in- 
jure if  not  destroy  the  business  of  complainants,  and  dam- 
ages at  law  would  afford  no  just  compensation  for  the  in- 
jury, an  injunction  is  the  proper  remedy.  Nor  will  such 
carrier  be  allowed  to  impose  upon  certain  warehousemen 
additional  charges  beyond  what  are  imposed  upon  others, 
and  it  may  be  enjoined  from  attempting  to  levy  such 
charges.^^  So  where  complainant,  a  coal  mining  company, 
having  its  tram-road  connected  with  defendant's  railway, 
and  being  entirely  dependent  upon  such  railroad  for  the 
means  of  transporting  its  coal  to  market,  sustains  special 
damages  and  injury  by  reason  of  illegal  exactions  by  de- 
fendant in   excess   of  the  rates  fixed  by   law,   an   injunction 

*9  Elmslie   v.  Delaware    &    S.  C.         so  "Vincent  (•.  Chicago  &  A.  R.  Co., 
Co.,  4  Whart,  424.     And  see  Dela-     49  111.,  33. 
ware  &  R.  Canal  r.  Raritan  &  D.  B. 
R.  Co.,  1  McCart.,  44-5. 


592  INJUNCTIOXS.  [CIIAP.  X. 

may  be  allowed  to  prevent  defendant  from  receiving  higher 
rates  than  those  allovi^ed  by  law.  And  the  relief  is  re- 
garded as  appropriate  in  such  case  upon  the  ground  of  the 
injury  being  a  constantly  recurring  one,  for  which  there  is 
no  adequate  remedy  at  law.^^  But  a  mandatory  injunction 
was  refused  in  the  first  instance,  when  sought  by  dealers 
and  shippers  of  coal  to  compel  a  railway  company  to  allow 
or  continue  to  plaintiffs  such  use  of  wharves  and  wharfing 
privileges  for  shipping  coal  as  were  required  for  their  busi- 
ness.^- 

§  617.    Judgment  creditors  enjoined  at  suit  of  bondholders. 

It  is  also  held  that  where  judgment  creditors  have  levied 
upon  a  large  portion  of  the  rolling  stock  of  a  railway,  a 
sale  of  which  would  result  in  stopping  the  operations  of  the 
road,  mortgage  bondholders  of  the  company,  whose  mortgage 
is  a  prior  lien  to  that  of  the  judgment  creditors,  are  entitled 
to  an  injunction  to  restrain  proceedings  under  the  execu- 
tion.^2  And  where  large  numbers  of  judgment  creditors, 
claiming  conflicting  liens  upon  a  railroad,  are  proceeding  to 
sell  parts  of  the  road  under  legal  process,  equity  may  prop- 
erly interfere  at  the  suit  of  a  bondholder  by  the  granting  of 
an  injunction  and  the  appointment  of  a  receiver  for  the 
benefit  of  all  parties  in  interest,  and  may  restrain  such  sales 
for  the  purpose  of  preventing  irreparable  injury  and  a  mul- 
tiplicity of  suits.^^ 

51  American  Coal  Company  r.  gage  upon  the  road,  which  was 
Consolidation  Coal  Company,  4t;  operated  through  several  different 
Md.,  15.  states  forming  one  continuous  line, 

52  Audenried  v.  Philadelphia  &  filed  its  bill  in  Georgia  to  restrain 
R.  R.  Co.,  68  Pa.  St.,  370.  a  sale  there  of  detached  portions  of 

53  Coe  V.  Pennock,  6  Am.  Law  the  road  by  different  and  conflict- 
Reg.  O.  S.,  27.  ing  judgment    creditors,    and    ob- 

54  Noble  Brothers  v.  State  of  Ala-  tained  an  injunction  and  receiver 
bama,  4.3  Ga.,  466.  In  this  case  for  the  purpose  of  preventing  a 
the  State  of  Alabama,  having  in-  sale  of  the  road  in  detached  parts, 
dorsed  the  bonds  of  a  railway  com-  and  for  its  better  preservation  for 
pany  and   being  secured   by  mort-  the  benefit  of  all  concerned. 


CHAP.  X.]  AGAINST    RAILWAYS.  593 

§  618.  Laches  and  acquiescence  of  property  owner  a  bar 
to  relief.  To  entitle  one  to  relief  by  injunction  against  the 
construction  of  a  railroad  over  his  land,  he  must  use  due 
diligence  in  the  assertion  of  his  rights,  since  the  relief  will 
not  be  granted  in  favor  of  one  who  has  been  guilty  of 
great  laches,  and  who  has  by  his  own  conduct  given  an 
implied  assent  to  the  construction  of  the  work  which  he 
afterward  seeks  to  restrain.  Thus,  where  the  owner  of  land 
has  silently  stood  by  and  neglected  to  assert  his  rights,  and 
has  permitted  a  railway  company  to  enter  upon  his  land  and 
to  proceed  with  the  erection  of  its  works  for  a  consider- 
able length  of  time  without  interruption  or  complaint,  he 
is  estopped  from  the  aid  of  equity  for  the  prevention  of  the 
work.^^  And  where  a  property  owner,  who  seeks  to  en- 
join a  railway  company  from  using  its  tracks  upon  a  street 
in  front  of  his  premises,^  has  permitted  the  company  to  ex- 
pend large  sums  of  money  in  the  construction  of  its  tracks, 
and  has  acquiesced  in  their  use  for  a  considerable  number 
of  years  without  objection  or  complaint,  such  acquiescence 
will  deprive  him  of  relief  by  injunction  regardless  of  what 
his  original  equities  may  have  been.^^  So  an  injunction  has 
been  refused  in  behalf  of  lot  owners  in  a  cemetery  to  re- 
strain a  railway  company  from  constructing  its  road  through 
the  cemetery,  plaintiffs  having  long  slept  upon  their  rights 
and  permitted  the  company  to  make  large  expenditures, 
hefore  seeking  relief.^" 

§619.     Interference  with  right  of  way.     An  action  can  not 
be  maintained  by  a  railway  company  to  restrain  defendant 

55  Greenhalgh  v.  Manchester  &  B.  proceedings,  upon  his  right  to  an 

R.  Co.,  3  Myl.  &  Cr.,  784;   Pickert  injunction. 

V.  Ridgefield    P.    R.  Co.,  10  C.   E.  so  Baltimore     &     0.     R.     Co.     r. 

Green,  316.     See  also    Relsner    v.  Strauss,  37  Md.,  237;    Ferguson  r. 

Strong,    24    Kan.,    410.     And     see  Covington,  etc.,  B.  Co.,  108  Ky.,  662, 

this   case    as    to  the  effect    of    the  57  S.  W.  460. 

prosecution  by  the  property  owner  5-  Wood  v.  Macon  &  B.  R.  Co.,  68 

of  an  appeal    from    condemnation  Ga.,  539. 
38 


594  INJUNCTIONS.  [chap.  X. 

from  interfering  with  its  right  of  way,  when  it  is  not  shown 
that  he  has  ever  done  or  threatened  any  interference,  or 
that  he  is  likely  to  interfere  with  such  right  of  way.^^ 

§  620.  Obstruction  by  rival  road  enjoined.  Where  the  de- 
fendant, a  rival  railway  company,  places  an  obstruction  upon 
the  approach  to  plaintiff's  railroad  in  such  manner  as  to  pre- 
vent access  thereto,  thereby  seriously  diverting  traffic  from 
plaintiff's  road,  a  fit  case  is  presented  for  relief  by  injunc- 
tion. The  jurisdiction  in  such  case  is  exercised  for  the  pre- 
vention of  a  trespass  of  an  irreparable  nature,  and  not  sus- 
ceptible of  measurement  in  damages.^'' 

§  621.  Approach  to  bridge.  Equity  may  properly  inter- 
fere, upon  an  information  by  the  attorney-general,  to  re- 
strain a  railway  company  from  keeping  the  approach  to  a 
bridge  in  a  condition  not  in  accordance  with  its  act  of 
incorporation.^"  And  a  county  which,  under  the  laws  of 
the  state,  is  vested  with  general  supervision  and  control 
over  county  roads,  may  enjoin  a  railway  company  from 
the  unauthorized  construction  of  its  tracks  in  and  along  a 
county  road.^i  But  a  court  of  equity  will  not  assume  juris- 
diction by  a  bill  for  an  injunction  in  behalf  of  the  people, 
to  restrain  a  railway  company  from  operating  its  trains  over 
the  streets  of  a  city,  upon  the  ground  of  failure  to  com- 
ply with  municipal  ordinances  under  which  the  company  has 
received  its  right  of  way  through  such  .streets,  when  such 
matters  are  clearly  within  the  control  and  jurisdiction  of 
the  common  council  of  the  city.^- 

§621  a.  Interchange  of  traffic;  unjust  discrimination;  un- 
reasonable freight  rates;   stock  yards;   railroad  may   enjoin 

■'.'^  St.  Joseph  &   D.  C.  R.  Co.  v.  oi  County  of  Stearns  v.  St.  Cloud, 

Dryden,   17  Kan.,  278.  M.  &  A.  R.  Co.,  36  Minn.,  425,  32  N. 

■'>!'  London  &  N.  W.  R.  Co.  t'.  Lan-  W.,  91.     But  see  County  of  Cook  v. 

cashire  &  Y.  R.   Co.,  L.   R.   4   Eq.,  Great  Western  R.  Co.,  119  111.,-  218, 

174.  10  N.  E.,  564. 

«o  Attorney-General    r.    Mid-Kent  «2  Cairo  &  Vincennes   R.    Co.    o. 

R.  Co..  L.  R.  3  Ch.,  100.  The  People,  92  111.,  170. 


CHAP.  X.]  AGAINST    RAILWAYS.  595 

enforcement  of  unreasonable  maximum  freight  rates;  form 
of  injunction.  A  mandatory  injunction  may  be  granted  to 
compel  one  railway  company  to  receive  and  transport  cars 
tendered  it  by  a  connecting  line ;  and  it  affords  no  justifica- 
tion for  a  refusal,  in  such  case,  that  the  taking  of  the  cars 
by  the  defendant  company  would  result  in  a  strike  by  its 
employees.^^  And  a  mandatory  preliminary  injunction  is 
properly  allowed  to  prevent  a  railroad  company  and  its 
officers  and  employees  from  refusing  to  furnish  to  another 
railroad  the  same  facilities  for  the  inter-state  transporta- 
tion of  freight  as  are  afforded  to  other  companies.*^^  So, 
upon  final  hearing,  it  is  proper  to  enjoin  the  defendant  com- 
pany from  refusing  to  accept  freight  or  passengers  from  the 
plaintiff  company  except  at  higher  rates  than  are  charged 
to  persons  or  property  received  from  other  companies,  such 
refusal  amounting  to  an  unjust  discrimination.*^^  So  a  rail- 
way company  may  be  enjoined  from  making  an  unjust  dis- 
crimination in  rates  as  between  different  shippers.  And  a 
discrimination  based  upon  the  larger  business  done  by  the 
favored  shipper  will  be  enjoined  upon  the  ground  of  pre- 
venting a  multiplicity  of  suits.  Nor  will  the  fact  that  the 
railway  company  is  a  consolidated  corporation,  extending 
and  operating  its  lines  through  different  states,  and  made 
up  of  corporations  originally  existing  in  such  dift'erent  states, 
prevent  the  courts  of  one  state  through  which  the  road  is 
operated  from  giving  relief  in  such  cases.^^  So  a  number  of 
manufacturers  engaged  in  the  same  business  may  combine 
together  to  enjoin  the  members  of  a  freight  association  from 

63  Chicago,  B.  &  Q.  R.  Co.  v.  Bur-  Pennsylvania  Co.,  54  Fed.,  746,  li) 

lington,  Cv  R.  &  N.  R.  Co.,  34  Fed.,  L.  R.  A.,  396. 

481.    As  to  the  right  to  enjoin  the  65  Denver  &  N.  0.  R.  Co.  v.  Atch- 

diversion  by  a  railway  company  of  ison,   T.   &   S.   F.    R.    Co.,   15   Fed., 

traffic  from  another  road,  see  Chi-  650.    As  to  the  reasons  for  refusing 

cago  &  Atlantic  R.  Co.  v.  New  York,  an     interlocutory      injunction      in 

L.  E.  &  W.  R.  Co.,  24  Fed.,  516.  such  case,  see  S.  C,  13  Fed.,  546. 

6*  Toledo,  A,  A.  &  N.  M.  R.  Co.  r.  ee  Scofield    v.    Railway     Co.,    43 

Ohio  St.,  571. 


596  INJUNCTIONS.  [chap.  X. 

enforcing  an  unreasonable  and  unjust  increase  in  freight 
rates  which  would  result  in  great  injury  to  the  plaintiffs' 
business,  the  relief  being  granted  to  prevent  a  multiplicity 
of  suits.*^"  So  where  plaintiffs  have  established  and  used 
for  a  long  term  of  years  stock  yards  In  connection  with 
and  adjoining  defendant's  railroad,  they  are  entitled  to  an 
injunction  to  prevent  defendant  from  refusing  to  deliver 
live  stock  at  such  yards  and  from  interfering  with  the  facili- 
ties which  have  been  used  and  enjoyed  by  plaintiffs.*^^  And 
an  injunction  is  the  appropriate  remedy  to  prevent  the  en- 
forcement of  a  schedule  of  maximum  freight  rates  pre- 
scribed by  statute  or  by  a  state  board  of  railroad  commis- 
sioners where  the  rates  as  thus  fixed  are  so  unreasonably 
low  as  to  amount  to  the  taking  of  private  property  with- 
out compensation  and  without  due  process  of  law.*^^  And 
the  relief  is  properly  granted  in  such  case  where  it  appears 
that  the  probable  effect  of  enforcing  such  rates  would  be  to 
prevent  the  earning  of  dividends  by  the  company."*^  Upon 
the  other  hand,  a  court  of  equity  has  no  power,  at  the  in- 

6T  Tift   V.   Southern   R.    Co.,   123  circumstances   would   be   fair   and 

Fed.,  789.  reasonable  as  between  the  carriers 

68Coe  V.  Louisville  &  N.  R.  Co.,  and  the(  shippers;    they  do  not  en- 

3  Fed.,  775.  gage  in  any  mere    administrative 

<">'■>  Reagan    v.    Farmers'   Loan  &  work;     but  still   there   can  be   no 

Trust  Co.,  154  U.  S.,  362,  14   Sup.  doubt  of  their  power  and  duty  to 

Ct.   Rep.,  1047,   38    L.    Ed.,    1014;  inquire   whether    a    body   of    rates 

Smyth  V.  Ames,  169  U.  S.,  466,  18  prescribed   by    a    legislature   or  a 

Sup.  Ct.  Rep.,  418;    Wallace  v.  Ar-  commission   is   unjust  and   unrea- 

kansas  C.  R.  Co.,  55  C.  C.  A.,  192,  sonable,  and  such  as    to    work   a 

118  Fed.,  422;     Louisville  &  N.  R.  practical   destruction    to   rights   of 

Co.  r.  McChord,  103  Fed.,  216.     In  property,  and  if  found  so  to  be,  to 

the  Reagan  case  Mr.  Justice  Brew-  restrain    its    operation."     See  the 

er    uses    the    following  language:  McChord    case,   supra,    as    to    the 

"The  courts  are  not  authorized  to  right  to  interfere  in  advance  of  the 

revise  or  change  the  body  of  rates  determination   of  the   rate  by  the 

imposed     by     a    legislature    or    a  commission. 

commission;     they     do    not   deter-  to  Chicago  &  N.  W.  R.  Co.  r.  Dey, 

mine   whether  one  rate   is   prefer-  35  Fed.,  866;    Chicago,  St.  P.,  M.  & 

able  to  another,  or  what  under  all  O.  R.  Co.  v.  Becker,  35  Fed.,  883. 


CHAP.  X.]  AGAINST   RAILWAYS.  597 

stance  of  a  shipper  and  before  an  alleged  unreasonable 
freight  rate  has  been  put  in  force  or  demanded  by  a  rail- 
road, to  formulate  a  schedule  of  maximum  freight  rates  to 
be  charged  by  the  carrier;  and  it  is  therefore  without 
jurisdiction  to  enjoin  the  enforcement  of  rates  in  excess  of 
the  schedule  thus  prescribedJi  And  where  a  statute  pro- 
hibits a  railroad  from  demanding  unreasonable  rates  or  giv- 
ing unreasonable  preferences,  an  injunction  which  is  merely 
in  the  terms  of  the  statute  and  wdiich  simply  repeats  its  gen- 
eral admonitions  without  specifying  definite  acts  is  improper 
since  it  leaves  issues  which  should  properly  be  determined 
by  a  court  and  jury  in  a  proceeding  for  damages  or  for 
violation  of  the  statute,  to  be  decided  in  a  contempt  pro- 
ceeding for  violation  of  the  injunction.'^- 

§6216.  Express  facilities;  sleeping  cars;  oil  compajiy. 
There  being  no  duty  imposed  upon  a  railway  company,  either 
by  statute  or  by  usage,  to  furnish  facilities  for  the  transac- 
tion of  express  business  by  express  companies,  an  injunction 
will  not  lie  to  prevent  the  exclusion  from  the  lines  of  a 
railway  company  of  an  express  company,  upon  the  termina- 
tion of  a  contract  under  which  the  express  company  has 
operated  upon  such  lines.'^s  ]sjor  will  equity  grant  an  in- 
junction to  compel  the  specific  performance  of  a  contract 
between  a  sleeping  car  company  and  a  railway  company  for 
the  carriage  of  sleeping  cars,  when  the  contract  is  to  con- 
tinue through  a  series  of  years,  requiring  the  court,  should 
it  assume  jurisdiction,  to  supervise  and  control  the  per- 
formance of  the  contract,  involving  intricate  details  of  man- 
agement and  administration.  Nor  will  equity  interfere,  in 
such  case,  if  the  contract  in  effect  gives  to  the  plaintiff  a 
monopoly  of  the  sleeping  car  business  upon  defendant's  road,, 

-1  Southern  Pac.  R.  Co.  v.  Col.  F.  &  I.  Co.,  42  C.  C.  A.,  12,  101  Fed., 

&  I.  Co.,  42  C.  C.  A.,  12,  101  Fed.,  779. 
779.  73  Express  Cases,  117  U.  S.,  1. 

72  Southern  Pac.  R.  Co.  v.  Col.  F. 


598  INJUNCTIONS.  [chap.  X. 

since  equity  will  not  entertain  jurisdiction  for  the  protec- 
tion of  monopolies.'''*  Nor  will  a  railway  company  be  al- 
lowed to  enjoin  an  oil  company  from  laying  its  pipes  for 
the  transportation  of  oil,  upon  the  ground  that  it  might 
interfere  with  plaintiff's  privileges  as  a  common  carrier.'^^ 

§  621  c.  Condemnation  for  other  companies,  or  for  im- 
proper purposes.  A  railway  company  will  not  be  enjoined 
from  condemning  a  right  of  way  over  the  tracks  and  lands 
of  another  company  upon  the  ground  that  the  road,  when 
constructed,  will  be  used  for  private  purposes  and  for  the 
benefit  of  another  corporation,  since  the  character  of  the 
road,  as  a  public  highway,  is  to  be  determined  by  the  laws 
of  the  state  and  not  by  the  intentions  of  its  projectors.'^^ 
Nor  can  a  property  owner  restrain  proceedings  by  a  rail- 
wa}^  company  for  the  condemnation  of  his  land  upon  the 
ground  that  such  proceedings  are  had  under  and  by  direc- 
tion of  the  lessee  of  the  company,  the  lease  of  its  property 
and  franchise  being  authorized  by  law.'^'^  So  a  railway 
company,  which  has  succeeded  by  foreclosure  and  purchase 
to  the  property  and  rights  of  a  former  company,  will  not  be 
enjoined  from  constructing  a  track  and  making  a  given  con- 
nection which  it  is  authorized  to  do  under  its  charter,  but 
which  the  former  company  had  contracted  not  to  do,  such 
contract  being  regarded  as  binding  only  the  former  com- 
pany .'^^  And  an  injunction  has  been  refused  which  was 
sought  by  property  owners  to  restrain  a  railway  company 
from   constructing   its   road    and   condemning   their   property 

~*  Pullman  P.  C.  Co.  v.  Texas  &  tral  R.  Co.,  32  N.  J.  Eq.,  755,  re- 

P.  R.  Co.,   11   Fed.,  625.     And  see  versing  S.  C.  sub  nom.  Central  R. 

Pullman  P.  C.  Co.  v.  Missouri  P.  R.  Co.   v.  Pennsylvania  R.  Co.,  31  N. 

Co.,  11  Fed.,  634.  J.  Eq.,  475. 

T".  United    N.    J.   R.   &   C.  Co.  v.  ~i  Gottschalk   r.  Lincoln  &  N.  R. 

Standard  Oil  Co.,  33  N.  .1.  Eq.,  123;  Co.,  14  Neb.,  389,  15  N.  W.,  695. 

Central  R.  Co.  r.  Standard  Oil  Co.,  "-*  City  of  Menasha  r.  Milwaukee 

33  N.  .T.  Eq.,  127.  &  N.  R.  Co.,  52  Wis.,  414,  9  N.  W., 

70  National  Docks  R.  Co.  r.  Cen-  396. 


CHAP.  X.]  AGAINST   EAILWAYS.  599 

upon  the  ground  that  the  company  was  a  fraudulent  organ- 
ization, the  court  finding  it  to  be  properly  incorporated,  and 
the  proceedings  to  be  free  from  fraudJ^  Where,  however, 
a  company  is  not  authorized  to  condemn  lands  for  depot 
purposes,  it  may  be  enjoined  by  a  property  owner  from  ap- 
propriating his  land  under  condemnation  proceedings  osten- 
sibly for  other  purposes  for  which  it  might  rightfully  exer- 
cise the  power  of  eminent  domain,  but  in  reality  for  depot 
purposes.^^ 

§  621  d.  Injunction  against  monopoly ;  securing  control  of 
parallel  line.  An  injunction  is  the  appropriate  remedy,  upon 
behalf  of  the  state,  to  prevent  competing  railroads  from  en- 
tering into  ulU-a  vires  contracts,  leases  or  agreements,  or 
from  doing  other  illegal  acts,  which  would  result  in  stifling 
competition  between  them  to  the  consequent  injury  of  the 
public.  Thus,  the  attorney-general,  proceeding  upon  behalf 
of  the  state,  may  enjoin  two  railroads  from  entering  into 
a  contract  which  was  designed  for  the  purpose  of  securing 
to  the  contracting  companies  a  monopoly  of  the  coal  busi- 
ness of  the  state.^^  So  the  state  may  enjoin  one  railroad 
from  acquiring  control  of  a  parallel  line  of  another  railroad 
contrary  to   the   provisions   of   the   state   constitution.^^ 

§  621  e.  Injunction  on  behalf  of  railway  against  ticket 
brokers;  parties.  A  railway  company  may  enjoin  ticket 
brokers   from   engaging   in    the   business   of   buying   and   sell- 

T9  Niemeyer  v.  Little  Rock  June-  476,  affirmed  in  161  U.  S.,  677,  16 

tion  R.  Co.,  43  Ark.,  111.  Sup.    Ct.    Rep.,   714.      In    this   case 

80  Forbes  v.  Delashmutt,  68  Iowa,  the  defendant  was  enjoined  from 
164,  26  N.  W.,  56.  acquiring  possession  or  control  of 

81  Stockton  V.  Central  R.  Co.,  50  the  property  or  franchises  of  the 
N.  J.  Eq.,  52,  24  Atl.  964,  17  L.  R.  parallel  road;  from  bidding  for 
A.,  97.  See  this  case  also  as  to  them  or  becoming  interested  in 
whether  actual,  threatened  injury  bidding  for  them  at  any  judicial 
must  be  shown.  And  see,  post,  sale;  and  from  becoming  cestui 
§  1229  a.  que  trust  of  any  trustee  who  might 

82  Louisville  &  N.  R.  Co.  v.  Com-  purchase  or  acquire  the  same, 
monwealth,  97  Ky.,  675,  31   S.  W., 


600  INJUNCTIONS.  [chap.  X. 

ing  the  unused  portions  of  railroad  tickets  which  have  been 
sold  to  passengers  who,  in  consideration  of  the  reduced  rate 
at  which  they  have  been  sold,  have  agreed  that  they  should 
be  good  only  in  the  hands  of  the  original  purchasers  and 
that  they  would  not  sell  or  transfer  them  to  other  persons. 
In  such  case  the  legal  remedy  is  regarded  as  inadequate  and 
the  relief  is  granted  to  prevent  a  multiplicity  of  suits.^^  And 
it  is  proper  to  join  as  defendants  in  one  action  numerous 
brokers  who  are  all-  engaged  in  the  same  business  and  who 
have  a  common  and  immediate  interest  in  the  questions  of 
law  and  fact  involved,  where  the  convenience  of  all  parties, 
is  promoted  by  such  a  joinder.^* 

83  Schubach    v.    McDonald,    179  man,  128  P'ed.,  176;     Illinois  Cen- 

Mo.,  163.  78  S.  W.,  1020,  65  L.  R.  tral    R.    Co.    t.    Caffrey,    128    Fed., 

A.,  136;    Nashville,  C.  &  St.  L.  R.  770. 

Co.    V.    McConnell,     82     Fed.,     65;  sUllinois  Central  R.  Co.  v.  Caf- 

Louisville  &  N.  R.   Co.   v.  Bitter-  frey,  128  Fed.,  770. 


CHAP.  X.]  AGAINST   RAILWAYS.  601 


II.     Failure  to  Compensate  for  Right  of  Way. 

§  622.  The  general  doctrine  stated  and  illustrated;  injury  need  not  be 
irreparable. 

623.  Further  illustrations. 

624.  Statutory  remedy  to  be  first  exhausted. 

625.  When  occupation  or  use  of  road  enjoined. 

626.  Injunction  allowed  on  failure  to  pay  judgment;   laches. 

627.  Specific  performance  of  vendor's  lien. 

628.  Requisites  of  bill. 

629.  Contest  as  to  title,  injunction  denied. 

630.  Construction  of  second  track;   injunction  denied  when  remedy 

in  ejectment. 

631.  The  doctrine  in  West  Virginia. 

632.  Effect  of  contract  as  a  bar  to  injunction. 

633.  Non-compliance  with  contract  by  company  no  ground  for  In- 

junction. 

634.  Further  considerations  as  to  effect  of  contracts. 

635.  Property  owner  on  street,  when  entitled  to  injunction  against 

construction  of  railway;  joinder  of  owners  as  plaintiffs. 

636.  Restrictions  upon  the  doctrine. 

637.  Distinction  as  to  ownership  of  fee  in  street. 

638.  Abandonment  of  award,  effect  of. 

639.  Notice  of  meeting  of  commissioners  necessary. 

640.  Failure   to  construct   cattle  gaps. 

641.  Railway  enjoined  from  taking  land  for  subsidiary  purposes. 

642.  Use  of  road  by  another  company. 

643.  Laches   and    acquiescence   of  property  owner. 

644.  Company  not  enjoined  from  condemnation  proceedings. 

645.  Condemnation   of  one  railway  by  another. 

646.  Mill  owners  enjoined  from  flooding  track. 

647.  Abandoned  road-bed. 

648.  Violation   of    contract  by  city. 

§  622.  The  general  doctrine  stated  and  illustrated ;  injury 
need  not  be  irreparable.  The  ground  upon  which  the  aid 
of  equity  is  most  frequently  invoked  to  restrain  the  con- 
struction of  railways  is  the  neglect  or  refusal  to  make  proper 
compensation  for  the  land  appropriated  for  the  use  of  the 
road.  The  general  rule  applicable  to  cases  of  this  nature  is, 
that  failure  or  omission  to  compensate  the  owner  of  land, 
or  to   tender   compensation   for   damages   incurred   by   loeat- 


602 


INJUNCTIONS. 


[chap.  X. 


ing  a  railroad  over  his  premises,  will  authorize  a  court  of 
equity  to  restrain  proceedings  until  the  damages  are  prop- 
erly adjusted,  or  until  just  compensation  is  made.^  The 
reasoning  in  support  of  the  rule  is  found  in  the  danger  of 
such  serious  and  irreparable  injury  resulting  from  the  con- 
tinuation of  the  work  that  the  tardy  process  of  courts  of 
law  would  afford  inadequate  relief.     An  injunction  is  there- 


1  Richards  r.  Des  Moines  V.  R. 
Co.,  18  Iowa,  259;  Sidener  v.  Nor- 
ristown,  etc.,  T.  Co.,  23  Ind.,  623; 
Commissioners  v.  Durham,  43  111., 
86;  Horton  v.  Hoyt,  11  Iowa,  496; 
Harness  v.  Chesapeake  &  0.  C.  Co., 
1  Md.  Ch.,  248;  Ross  v.  Elizabeth- 
Town,  etc.,  R.  Co.,  1  Green  Ch., 
422;  Powers  v.  Bears,  12  Wis.,  213; 
Morris  &  E.  R.  Co.  v.  Hudson  Tun- 
nel R.  Co.,  10  C.  E.  Green,  384; 
Folley  V.  City  of  Passaic,  11  C.  E. 
Green,  216;  Murdock  v.  Prospect 
P.  &  C.  I.  R.  Co.,  73  N.  Y.,  579; 
Armstrong  v.  Waterford  &  L.  R. 
Co.,  10  Ir.  Eq.,  60;  Western  Mary- 
land R.  Co.  v.  Owings,  15  Md.,  199; 
Carpenter  v.  Grisham,  59  Mo.,  247; 
Bohlman  v.  Green  Bay  &  L.  P.  R. 
Co.,  30  Wis.,  105;  Bohlman  r.  Green 
Bay  &  M.  R.  Co.,  40  Wis.,  157;  Ste- 
vens V.  Erie  R.  Co.^  6  C.  E.  Green, 
259;  Cobb  v.  Illinois  &  St.  L.  R.  Co., 
68  111.,  233;  Southern  R.  Co.  v.  B., 
S.  &  N.  04  R.  Co.,  131  Ala.,  663,  29 
So.,  191;  Hodges  v.  S.  &  R.  R.  Co.. 
88  Va.,  653,  14  S.  E.,  380;  Pratt  ('. 
Roseland  R.  Co.,  50  N.  J,  Eq.,  150, 
24  Atl.,  1027.  And  see  Browning 
V.  Camden  &  A.  R.  Co.,  3  Green  Ch., 
47;  Bonaparte  v.  Camden  &  A.  R. 
Co.,  Baldw.,  227;  Penrice  v.  Wallis, 
37  Miss.,  172;  New  Central  Coal 
Co.  V.  George's  Creek  Coal  &  Iron 
Co.,  37  Md.,  537;  Bensley  v.  Mount 


ain,  13  Cal.,  306;  Midland  R.  Co. 
V.  Smith,  113  Ind.,  233,  15  N.  E., 
256;  Lake  Erie  &  W.  R.  Co.  r. 
Michener,  117  Ind.,  465,  20  N.  E., 
254;  Northern  Pacific  R.  Co.  r.  Bur- 
lington &  M.  R.  Co.,  2  McCrary, 
203;  S.  C,  4  Fed.,  298;  East  & 
West(  R.  Co.  V.  East  Tennessee,  V. 
&  G.  R.  Co.,  75  Ala.,  275;  Coyne  v. 
Warrior  S.  Ry.,  137  Ala.,  553,  34 
So.,  1004.  And  it  was  stated  by 
Lord  Cottingham,  in  a  recent 
English  case,  to  be  most  essential 
to  the  interest  of  the  public  that 
such  jurisdiction  should  exist  and 
should  be  exercised  whenever  a 
proper  case  for  it  is  brought  before 
the  court,  "otherwise  the  result 
may  be,  that  after  your  house  has 
been  pulled  down,  and  a  railway 
substituted  in  its  place,  you  may 
have  the  satisfaction,  at  a  future 
period,  of  discovering  that  the  rail- 
way company  were  wrong."  River 
Dun  N.  Co.  r.  North  M.  R.  Co.,  1 
Railway  Cases,  135.  See  as  to  the 
effect  upon  the  right  to  an  injunc- 
tion, of  a  transfer  of  title  to  the 
land  in  controversy  to  a  rival  com- 
pany or  to  a  person  acting  at  the 
instigation  of  a  rival  company. 
Piedmont  &  C.  R.  Co.  r.  Speelman, 
67  Md.,  260,  and  Ocean  City  R.  Co. 
r.  Bray,  57  N.  J.  Eq.,  164,  37  Atl., 
604. 


CHAP.  X.]  AGAINST    KAIL  WAYS.  603 

fore  regarded  as  the  most  appropriate  and  efficient  remedy 
for  the  protection  of  the  rights  assailed,  and  for  the  pre- 
vention of  such  irreparable  injury  as  would  be  likely  to 
result  from  a  continuance  of  the  proposed  work.^  Where, 
therefore,  a  railway  company  claims  and  is  attempting  to 
exercise  the  right  of  entering  upon  real  estate  for  the  con- 
struction of  its  road,  under  color  of  law,  but  without  hav- 
ing complied  with  the  requirements  of  the  statute,  an  in- 
junction will  be  allowed  to  prevent  further  proceedings.-*^ 
And  an  injunction  may  be  granted  to  prevent  a  railway 
from  further  occupancy  of  land  for  which  it  has  not  made 
compensation,  even  though  the  company  has  actually  ten- 
dered an  amount  agreed  upon  by  arbitrators  chosen  under 
a    statute    held    to    be    unconstitutional.^      And    the    rule    is 

2  Sidener  v.  Norristown,  23  Ind.,  pensation  or  equivalent;  his  dam- 
623.  ages     are     not    pecuniary,    vide    7 

3  Browning  v.  Camden  &  A.  R.  Jolms.  Ch.,  731;  his  objects  in 
Co.,  3  Green  Ch.  47;  Bonaparte  v.  making  his  establishment  were 
Camden  &  A.  R.  Co.,  Baldw.,  227;  not  profit,  but  repose,  seclusion, 
Armstrong  v.  Waterford  &  L.  R.  and  a  resting  place  for  himself 
Co.,  10  Ir.  Eq.,  60.  The  grounds  and  family.  If  these  objects  are 
upon  which  courts  of  equity  inter-  about  to  be  defeated;  if  his  rights 
fere  to  prevent  railway  companies  of  property  are  about  to  bo  de- 
from  illegally  appropriating  priv-  stroyed  without  the  authority  of 
ate  property  have  been  well  stated  law;  or  if  lawless  danger  im- 
as  follows:  "The  injury  com-  pends  over  them  by  persons  act- 
plained  of  as  impending  over  his  ing  under  color  of  law,  when  the 
(complainant's)  property  is  its  per-  law  gives  them  no  power,  or  when 
manent  occupation  and  appropria-  it  is  abused,  misapplied,  exceeded, 
tion  to  a  continuing  public  use  or  not  strictly  pursued,  and  the 
which  requires  the  divestiture  of  act  impending  would  subject  the 
his  whole  right,  its  transfer  to  the  party  committing  it  to  damages  in 
company  in  full  property,  and  his  a  court  of  law  for  a  trespass,  a 
inheritance  to  be  destroyed  as  ef-  court  of  equity  will  enjoin  its  com- 
fectively  as  if  he  had  never  been  mission."  Baldwin,  J.,  in  Bona- 
its  proprietor.  No  damages  can  parte  r.  Camden  &  A.  R.  Co., 
restore   him   to   his   former   condi-  Baldw,,  231. 

tion;  its  value  to  him  is  not  •*  Powers  r.  Bears,  12  Wis.,  213 
money,  which  money  can  replace:  And  see  Shepardson  r.  Milwaukee 
nor  can  there  be  any  specific  com-     B.  &  R.  Co.,  6  Wis.,  605. 


C04  INJUNCTIONS.  [chap.  X. 

well  established  that  courts  of  equity  may  properly  inter- 
fere in  cases  of  this  kind  without  reference  to  the  question 
whether  the  injury  complained  of  is  irreparable  in  its  na- 
ture.^ And  the  owner  of  land  which  is  being  taken  by  a 
railway  company  for  the  location  of  its  road,  without  his 
consent  and  without  making  or  tendering  compensation,  is 
entitled  to  an  injunction,  ex  debito  justiticu.^  Nor  is  it 
necessary  that  there  should  be  any  threat  or  declared  in- 
tention on  the  part  of  the  railway  company  to  go  on  with 
the  work,  if  it  is  doing  preparatory  acts  indicating  an  in- 
tention to  proceed.'^  And  where  a  railway  company  has 
been  enjoined  from  the  use  of  land  without  having  made 
payment  or  tender  of  damages  as  provided  in  its  charter,, 
and  without  the  consent  of  the  owner,  the  injunction  will  not 

5  Western  Md.  R.  Co.  i\  Owings,  son    that    no    irreparable   present 

15  Md.,  199;    American  Tel.  &  T.  damage  is  shown,  nor  is  it  at  all 

Co.  v.  Pearce,,  71  Md.,  535,  7  L.  R.  certain  that  any  ever  will  be  done. 

A.,   200;     S.  C.   cited  as  American  But    a    widely    different    rule    pre- 

Tel.  &  T.  Co.  V.  Smith,  18  Atl.,  910;  vails  in  cases  where  a  corporation, 

Pratt  V.  Roseland  R.  Co.,  50  N.  J.  having  authority  to  take   land  on 

Eq.,  150,  24  Atl.,  1027;    Hodges  v.  condition  that  it  shall  pay  for  the 

S.  &  R.  R.  Co.,  88  Va.,  653,  14  S.  land    before    appropriating    it,   at- 

E.,  380;    Birmingham  T.  Co.  v.  Bir-  tempts  to  appropriate  the  land  to 

mingham    R.    &   E.    Co.,    119    Ala.,  its  own  use  against  the  will  of  its 

129,  24   So.,  368;     Same    r.    Same,  owner  but   without  paying  for  it. 

119  Ala.,  137,  24  So.,  502,  43  L.  R.  In  that  class  of  cases  no  irrepara- 

A.,  233;     Southern  R.  Co.  v.  B.,  S.  ble  damage  need  be  shown  but  the 

&  N.   0.   R.  Co.,  131   Ala.,   663,   29  court  will  exercise  its  prohibitory 

So.,  191.  And  see  dicta  to  the  same  power  as  soon  as  it  is  made  to  ap- 

effect  in  East    &    West  R.   Co.  v.  pear  that  the   corporation    is    at- 

East  Tennessee  V.  &  G.  R.  Co.,  75  tempting  to   appropriate   the   land 

Ala.,  275,  and  Coyne  v.  Warrior  S.  against  the  will  of  its  owner  con- 

Ry.,  137  Ala.,  553,  34  So.,  1004.     In  trary  to  the  terms  of  its  charter." 

Pratt  V.  Roseland  R.  Co.,  50  N.  J.  And  see,  post,  §  1273. 

Eq.,   150,   24  Atl.,  1027,  supra,  the  c  Bohlman  r.  Green  Bay  &  M.  R. 

court  say:     "It  is  obvious  that  if  Co.,  40  Wis.,  157. 

this   were  a   suit   between   private  "•  Bonaparte  v.  Camden   &    A.    R. 

persons,     involving     nothing     but  Co.,  Baldw.,  227;   New  Orleans  M. 

strictly   private  rights,   no   injunc-  &  C.  R.  Co.  r.  Frederic,  46  Miss.,  1. 
lion  could  be  granted,  for  the  rea- 


'CHAP.  X.]  AGAINST    EAILWATS.  605 

usually   be   dissolved   on   motion   before   a   hearing   upon   the 
merits.^    ■  And    a    street    railway    company    which    owns    its 
right   of   way   may    enjoin    another    street    railway    company 
from    crossing    such    right    of   way    until    condemnation    and 
proper    compensation.^      And    upon    the    same    principle    as 
those  which  govern  the  granting  of  injunctions  against  rail- 
ways in  such  cases,  relief  may  be  allowed  to  restrain  a  tele- 
graph company  from  constructing  its  line  over  plaintiff's  land 
until  condemnation  is  had  and  proper  compensation  made.^^ 
§  623.     Further  illustrations.     In  conformity  with  the  gen- 
■eral    principles    laid    down    in    the    preceding    section,    it    is 
held    that    where    a    railway    company   neglects    and    refuses 
to    pay    the    damages    properly    assessed    against    it    for    the 
right  of  way  over  complainant's  land,  and  proceeds  to  con- 
struct its  road  over  complainant's  premises,  or  continues  to 
operate  its  road  over  the  land  in  question,  an  injunction  will 
be    allowed    uiltil    payment    has    been    made    of    the    damages 
assessed.^  1      And   where    the    company    is    proceeding,    under 
<;laim    and    color    of    right,    to    permanently    locate    its    road 
■over  one's  land  without  having  made  any  compensation  there- 
for,   equity    will    interpose    to    prevent    the    construction    of 
the   road.^-      So   the    construction    of   a    railway   track   upon 
one's  land  without  making  compensation  therefor  and  with- 
out condemning  the  right  of  way,   and  without  the  owner's 
permission,  may  be  enjoined  as  an  irreparable  injury,  espe- 
cially when   the   digging  and   removal   of  the   sand   and   soil 
will   endanger    complainant's    property    by    turning   the    cur- 
rent  of  a   river   over   his   land.^" 

8  Ross  r.  Elizabeth-Town  R.  Co.,  n  Richards  r.  Des  Moines  V.  R. 

1  Green  Ch.,  422.  Co.,   18   Iowa,   259;     Freshwater   v. 

•■>  Birmingham  T.  Co.  v.  Birming-  Pittsburg,  W.  &  K.  R.  Co.,  6  West 

ham  R.  &  E.  Co.,  119  Ala.,  129,  24  Va.,  503. 

So.,   368.  12  Sidener  r.  Norristown  T.   Co., 

10  American     Tel.    &     T.    Co.    v.  23   Ind.,   623.     And   see  Stevens  v. 

Pearce,    71    Md.,   535,   7   L.   R.  A.,  Erie  R.  Co.,  6  C.  E.  Green,  259. 

200;     S.  C.  cited  as  American  Tel.  is  Cobb  r.  Illinois  &  St.  Louis  R. 
&  T.  Co.   r.   Smith,  18  Atl.,  910. 


606  INJUNCTIONS.  [chap.  X. 

§  624.  Statutory  remedy  to  be  first  exhausted.  The  gen- 
eral doctrine  as  above  stated  is  to  be  accepted  with  this 
qualification :  that  where  a  statutory  remedy  is  provided  for 
obtaining  damages  for  private  property  taken  in  the  con- 
struction of  roads  or  railways,  or  for  the  relief  of  such  per- 
sons as  consider  themselves  aggrieved  in  the  assessment  of 
damages  for  their  property  taken,  such  statutory  remedy 
must  first  be  exhausted  before  equity  will  extend  its  protec- 
tion.^* Thus,  where  a  statute  provides  a  mode  of  obtaining 
damages  for  property  taken  for  the  use  and  construction  of 
a  railway,  but  the  owner  of  the  land  has  neglected  to  avail 
himself  of  the  mode  of  relief  thus  pointed  out,  he  will  not 
be  allowed  to  enjoin  the  construction  of  the  road  because 
of  the  non-payment  of  damages.^ ^ 

§  625.  When  occupation  or  use  of  road  enjoined.  So  jeal- 
ous are  courts  of  equity  in  protecting  the  rights  of  land 
owners  against  the  unauthorized  occupation  of  their  prem- 
ises in  the  construction  of  railways,  without  just  compen- 
sation being  first  made  therefor,  that  the  preventive  relief 
in  this  class  of  cases  is  frequently  extended  to  restraining 
the  further  occupation  of  the  premises  or  the  operation  of 
the  road  after  its  construction. ^"^  Thus,  where  a  railway 
company  is  wrongfully  in  possession  of  complainant's  prem- 

Co..  68  111.,  233.  And  it  is  said  by  R.  Co.,  18  Iowa,  259;  Hibbs  v.  Chi- 
the  court,  obiter,  that  an  injunc-  cage  &  S.  W.  R.  Co.,  39  Iowa,  340; 
tion  may  also  go  in  such  case  upon  Murdock  r.  Prospect  P.  &  C.  I.  R. 
the  ground  that  the  company  in  Co.,  73  N.  Y.,  579;  Evans  r.  Mis- 
doing the*  act  complained  of  is  ex-  souri,  I.  &  N.  R.  Co.,  64  Mo.,  453; 
ercising  power  not  conferred  by  Perks  p.  Wycombe  R.  Co.,  3  Gif., 
its  charter.  662;    White  v.  Nashville    &    N.  R. 

14  Nichols  r.  Salem,  14  Gray,  490;  Co.,  7  Heisk.,  518;   Provolt  r.  Chi- 

New  Albany   &    S.   R.    Co.    v.   Con-  cago,   R.    I.   &   P.    R.    Co.,    69    Mo., 

nelly,  7  Ind.,  32.    And  see  Parham  633;    Kendall  r.  Missisquoi  &  C.  R. 

r.  Justices,  9  Ga.,  341.  R.  Co.,  55  Vt.,  438;    Stolze  v.  M.  & 

'••  New    Albany    &    S.   R.   Co.    v.  L.  W.  R.  Co.,  104  Wis.,  47,  80  N.  W., 

Connelly,  7  Ind.,  32.  68.     See  also  Kittell   /;.   Missisquoi 

i«  Richards  r.  Des  Moines  Valley  R.  Co.,  56  Vt.,  96. 


CHAP.  X.]  AGAINST    RAILWAYS.  607 

ises,  having  taken  possession  and  constructed  its  road  with- 
out title,  it  may  be  enjoined  from  longer  continuing  in 
possession  or  carrying  on  its  works  until  proper  compen- 
sation is  ascertained  and  paid.^'^  So  it  is  proper  to  restrain 
the  continuous  unlawful  use  of  plaintiff's  land  by  operat- 
ing a  railroad  over  it,  when  the  defendant  company  has  not 
taken  the  necessary  proceedings  to  acquire  title  under  the 
laws  of  the  state,  and  when  it  has  no  grant  from  plaintiff 
and  no  right  to  the  occupancy  of  his  premises.^ ^  And  after 
proceedings  have  been  instituted  by  a  railway  company  for 
the  condemnation  of  land  for  its  right  of  way,  the  lessee 
of  the  company  may  be  enjoined  from  operating  its  road 
over  the  land  condemned  until  payment  of  the  damages  is 
made,  since  the  lessee  can  acquire  no  greater  rights  than 
were  enjoyed  by  the  lessor.^  ^ 

§626.  Injunction  allowed  on  failure  to  pay  judgment; 
laches.  It  is  also  held,  where  the  charter  of  a  railway  com- 
pany authorizes  it,  upon  deposit  or  tender  of  the  amount 
found  due  by  the  commissioners  to  the  land  owner  for  the 
condemnation  of  his  land,  to  proceed  with  the  construction 
of  its  road,  and  the  company  makes  such  deposit,  but  the 
land  owner  excepts  to  the  report  of  the  commissioners  and 
procures  another  assessment  of  damages  and  judgment 
thereon,  the  railway  company  having  in  the  meantime  com- 
pleted its  road  over  the  premises  and  being  insolvent,  that 
the  company  may  be  enjoined  from  operating  its  road  in 
default  of  payment  of  the  judgment.  Under  such  circum- 
stances, the  land  owner,  having  fully  exhausted  the  statu- 
tory method  of  obtaining  redress,  is  properly  entitled  to  the 
aid  of  equity  for  his  protection.'-*^     But  where,  notwithstand- 

1"  Perks  i\  Wycombe    R.    Co.,    3         20  Evans  v.  Missouri,   I.  &  N.  R. 

Gif.,  662.  Co.,  64  Mo.,  453.     See  also  Provolt 

18  Murdock   v.   Prospect  P.   &   C.  r.   Chicago,  R.    I.  &   P.   R.    Co.,   69 

I.  R.  Co.,  73  N.  Y.,  579.  Mo.,    633;      Gammage    v.    Georgia 

I'-'  Hibbs   c.  Chicago  &   S.  W.  R.  Southern  R.  Co.,  65  Ga.,  614. 
Co.,  39  Iowa,  340. 


€08  INJUNCTIONS.  [chap.  X. 

ing  the  failure  or  refusal  of  the  railroad  to  pay  the  judg- 
ment rendered  against  it,  the  land  owner  has  permitted  it 
to  take  forcible  possession  of  his  land  and  to  construct  its 
road  and  to  operate  it  four  years  before  seeking  to  enjoin, 
the  right  to  the  relief  will  be  barred  by  the  owners  laches 
as  against  the  superior  rights  of  the  public.-^ 

§  627.  Specific  performance  of  vendor's  lien.  In  an  ac- 
tion by  the  vendor  of  lands  which  have  been  sold  to  a 
railway  company  for  the  purposes  of  its  road  to  enforce 
specific  performance  of  the  agreement  and  for  a  vendor's 
lien  upon  the  premises  sold,  equity  will  not  grant  an  injunc- 
tion before  the  hearing  to  restrain  defendant  from  operat- 
ing its  road  over  the  premises  in  question.22  Such  a  case  is 
regarded  as  being  an  appropriate  one  for  the  appointment 
of  a  receiver  rather  than  for  relief  by  injunction.  And  the 
land  owner  having  obtained  a  decree  for  the  specific  per- 
formance of  the  contract  of  sale,  and  declaring  his  vendor's 
lien  upon  the  premises  for  the  balance  of  unpaid  purchase- 
money,  while  he  will  not  be  allowed  to  enjoin  the  company 
from  running  its  cars  over  the  land  or  from  using  it,  may 
have  a  receiver  to  preserve  the  property  and  render  it 
profitable  for  the  benefit  of  all  parties  in  interest,  the  com- 
pany being  insolvent.^s  "Where,  however,  the  land  has  be- 
come unsalable,  a  vendor  who  has  obtained  a  decree  against 
an  insolvent  company  for  the  enforcement  of  his  vendor's 
lien  may  restrain  the  company  from  operating  the  road  or 
continuing  in  possession  of  the  land,  in  default  of  payment 
of  the  amount  due.^^ 

§  628.  Requisites  of  bill.  Although  the  right  of  a  land 
owner   to    restrain   a   railway    company    from    taking   perma- 

21  Midland  R.  Co.  v.  Smith,  135  100;  Munns  r.  Isle  of  Wight  R.  Co., 
Ind.,  348,  3.^  N.  E.,  284.  L-  R-  5  Ch.,  414. 

■.;■-  Latimer  v.  Aylesbury  &  B.  R.         -•'  Munns  r.  Isle  of  Wight  R.  Co., 
Co.,  9   Ch.   D.,  385;    Pell   r.  North-     L.  R.  5  Ch.,  414. 
ampton  &   B.   R.  Co.,  L.  R.   2  Ch.,         ~*  Allgood  r.   Merrybent  &  D.  R. 

Co.,  33  Ch.  D.,  571. 


CHAl'.  X.J  AGAINST    RAILWAYS.  609 

nent  possession  of  his  land  withont  a  legal  determination 
of  the  amount  due  him  as  compensation,  and  without  tender 
or  payment  of  such  amount,  is  unquestioned,  yet  to  entitle 
him  to  such  relief  it  must  clearly  appear  that  the  company 
threatens  or  intends  to  take  possession  of  the  land  without 
such  payment.  And  when  a  bill  is  lacking  in  such  aver- 
ment it  can  not  be  supported  by  the  court  by  inference,  and 
a  demurrer  because  of  such  omission  will  be  sustained.-^ 

j;  629.  Contest  as  to  title,  injunction  denied.  Nor  will  re- 
lief by  injunction  be  granted  in  the  class  of  cases  under  con- 
sideration, when  the  question  involved  is  a  mere  naked  ques- 
tion of  adverse  title  between  the  parties.  Where,  thereforaf- 
the  railway  company  itself  claims  title  to  the  land  in  con- 
troversy, an  injunction  will  be  denied  when  it  is  not  shown 
that  an  action  of  ejectment  or  trespass  will  not  afford  all  neces- 
sary relief.-*^  So  where  a  railway  company,  acting  in  good 
faith  and  by  permission  of  the  person  in  possession  and 
claiming  title  as  devisee  for  life  of  real  estate,  has  entered 
upon  the  premises  and  -  constructed  the  greater  part  of  its 
road-bed,  it  will  not  be  enjoined  from  proceeding  at  the 
suit  of  _  persons  claiming  as  remainder-men,  but  whose  title 
is  disputed,  the  railway  company  offering  to  deposit  in  court 
a  sufficient  sum  to  compensate  complainants  for  any  inter- 
est they  may  have  in  the  premises.^'^  And  a  preliminary  in- 
junction is  properly  dissolved  where  the  defendant  proves 
title  and  possession  to  the  locus  in  quo,  while  the  plaintiff 
offers   no   proof   either   of  title   or   of  possession. -^ 

§630.  Construction  of  second  track;  injunction  denied 
when  remedy  in  ejectment.  Where  a  railway  company  has 
constructed    its    track    over    complainants'    premises    without 

25  Deidrichs    v.    The  Northwest-  Covington   &    M.    R.    Co.,    77    Ga., 

ern  Union  R.   Co.,    33    Wis.,  219;  322,  2  S.  E.,  555. 

East  &  West  R.  Co.   v.  East  Ten-  27  Lanterman    v.    Blairstown    R. 

nessee,  V.  &  G.  R.  Co.,  75  Ala.,  275.  Co.,  28  N.  J.  Eq.   (1  Stew.),  1. 

2fi  Webster    r.    South-Eastern    R.  -'s  Patterson  v.  Scranton  &  F.  C. 

Co.,  1   Sim.   N.   S.,   272;     Davis   v.  R.  Co.,  129  Pa.  St.,  109,  18  At!.,  563. 
39 


610  INJUNCTIONS.  [chap.  X. 

authority,  and  is  about  to  construct  another  track  over  the 
same  premises,  also  without  authority,  and  without  having 
made  compensation  therefor  to  the  owner,  an  injunction  will 
be  granted  to  restrain  the  construction  of  the  second  track. 
But  in  such  case,  the  first  track  being  already  completed 
and  the  cars  running  thereon,  .an  injunction  will  not  be 
granted  to  prevent  the  cars  from  running  when  an  action 
of  ejectment  and  for  mesne  profits  will  afford  ample  relief.^^ 

§  631.  The  doctrine  in  West  Virginia.  The  right  to  relief 
in  the  class  of  cases  under  consideration  is  sometimes  affected 
by  legislation.  Thus,  in  West  Virginia  it  is  held  under  the 
statutes  of  the  state  that  an  injunction  will  not  lie  at  the 
suit  of  a  property  owner  to  restrain  the  operations  of  a 
railway  company  charged  with  having  entered  upon  and 
taken  possession  of  plaintiffs'  land  without  authority,  when 
it  is  not  averred  that  the  company  at  the  time  of  filing  the 
bill  was  transcending  its  authority  or  was  about  to  do  so, 
or  that  it  was  insolvent  or  about  to  do  an  injury  to  plain- 
tiffs' property  which  could  not  be  compensated  in  dam- 
ages.^^ 

§  632.  Effect  of  contract  as  a  bar  to  injunction.  While  the 
jurisdiction  of  equity  to  prevent  by  injunction  the  use  of 
private  property  for  railroad  purposes  without  compensation 
is,  as  we  have  already  seen,  freely  exercised,  a  different  case 
is  presented  when  the  owner  has  contracted  to  convey  a 
right  of  way  to  the  railway  company,  and  no  breach  of  the 
contract  has  occurred  on  the  part  of  the  company.  In  such 
case,  the  owner  of  the  land  by  his  contract  of  sale  waives  his 
constitutional  right  to  insist  upon  compensation  before  his 
land  is  taken,  and  he  will  be  held  to  abide  by  the  terms  of 
his  contract  when  there  has  been  no  breach  upon  the  part 

20  Stevens  v.  Erie  R.  Co.,  6  C.  E.  Same  v.  Bobbett,  lb.,  138.     See,  as 

Green,  259.  to    the   governing   statute    in   such 

■■■<>  Chesapeake  &  O.  R.  Co.  v.  Pat-  case,   Code   of   West    Virginia,   ch. 

ton.    r,    W'^st    Va..     234.      And     see  42,  sec.  20. 


CHAP.  X.]  AGAINST    RAILWAYS.  611 

of  the  railway  company.  Where,  therefore,  a  land  owner  has 
contracted  to  convey  a  right  of  way  to  a  railway  company 
upon  certain  conditions  and  has  put  the  company  into  pos- 
session and  it  is  proceeding  with  the  construction  of  its 
line,  it  will  not  be  enjoined  by  the  owner  from  the  use  of 
the  land  when  it  has  not  violated  any  of  the  conditions  of 
the  contract.^^ 

§  633.  Non-compliance  with  contract  by  company  no 
ground  for  injunction.  So,  also,  the  non-compliance  by  a 
railway  company  with  its  contract  for  the  payment  of  dam- 
ages to  the  owner  of  the  land,  who  has  voluntarily  con- 
veyed the  right  of  way  to  the  company  upon  its  promise 
to  pay,  constitutes  no  sufficient  ground  for  an  injunction, 
even  under  a  statute  authorizing  injunctions  against  railways 
to  prevent  their  use  of  private  property  without  compen- 
sation.2-  Such  a  statute  is  to  be  construed  as  applying  only 
to  cases  where  the  property  is  appropriated  by  the  road 
without  consent  of  the  owner,  and  he  having  voluntarily 
conveyed  the  right  of  way  is  barred  from  asserting  his  claim 
to  relief  in  equity,  the  remedy  being  at  law  upon  the  agree- 
ment of  the  company  to  pay  for  the  land  taken.^^  So  whore 
the  owner  of  real  estate  has  permitted  a  railway  company 
to  take  possession  of  and  to  construct  its  road  over  his  land, 
taking  from  the  company  a  bond  for  the  payment  of  the 
purchase  money  at  a  given  day,  the  owner  will  not  be  al- 
lowed to  enjoin  the  company  from  continuing  in  possession 
upon  a  failure  to  pay  the  bond.^^  And  it  may  be  laid  down 
as  a  general  rule  that  the  violation  or  non-performance  by 
a  railway  company  of  its  contracts  with  reference  to  the  con- 
struction of  its  road  constitutes  no  ground  for  the  interfer- 
ence   of   equity   to   restrain    such    construction.     In   all    such 

31  Baltimore  R.  Co.  v.  Highland,        3^  Id. 

48  Ind.,  381.  34  Peii    v.   Northampton   &  B.    J. 

32  Vilas  V.  Milwaukee    &    M.    R.     R.  Co..  L.  R.  2  Ch.,  100. 
Co.,  15  Wis.,  233. 


612  INJUNCTIONS.  [chap.  X. 

cases  the  remedy  at  law  for  violation  of  contract  is  ample, 
and  equity  will  not  entertain  jurisdiction."^' 

§  634.    Further  considerations  as  to  effect  of  contracts.    It  is 

also  held,  where  a  railroad  company  has  entered  upon  and 
taken  possession  of  real  property  under  a  license  or  contract 
from  the  owner,  that  it  may  enjoin  him  from  retaking  pos- 
session of  the  premises,  even  though  the  company  has  not 
complied  with  its  contract  as  to  the  consideration  for  the 
license  or  privilege ;  although  the  injunction,  in  such  case, 
will  not  be  permitted  to  prejudice  the  rights  of  the  grantor 
of  the  premises  to  a  specific  performance  of  the  contract.-'"' 
And  where  a  railway  company  has  received  from  a  land 
owner  a  contract  to  convey  a  right  of  way,  and  the  com- 
pany has  fully  complied  with  the  contract  on  its  part,  it  is 
entitled  to  maintain  a  bill  for  specific  performance.  And  upon 
such  bill  it  may  have  the  aid  of  an  injunction  to  restrain 
the  grantor  from  proceeding  at  law  to  procure  an  assess- 
ment of  damages  for  the  right  of  way.*'''^  Where,  however,  a 
railway  company  has  agreed  with  the  owner  to  submit  the 
question  of  damages  for  property  taken  to  arbitration,  it 
will  not  be  permitted  to  enjoin  him  from  asserting  and  ex- 
ercising his  ownership  over  the  premises  so  long  as  it  is  i^ 
default  in  the  payment  of  the  sum  agreed  upon  by  the 
arbitrators;  in  such  case  the  company  will  itself  be  enjoined 
from  using  the  premises  until  the  amount  is  paid.-'*^  And 
when  a  land  ownei-  grants  to  a  railway  company  the  right 
to  construct  its  road  across  his  land,  without  defining  the 
limits  of  such  right  of  way,  and  the  company  locates  its 
road  upon  a  given  route  through  such  land,  such  selection 
and  use,  acquiesced  in  by  the  grantor,  will  be  held  equivalent 
to    fixing    the    exact    location    of   the    i-ighl    of    way    granted. 

:'•"■  Gallagher    r.     Fayette  Co.    R.         ■■"  Chicago  &    S.     W.    R.    Co.    v. 

Co.,  38  Pa.  St.,  102.  Swinney,  .38  Iowa,  182. 

:i'i  Williamstoii    &    T.     II.  Co.    r.         *'<  Stewart  /■.  Raymond  R.  Co.,  15 

Hat  tie,  66  N.  C.  i')40.  Miss.,  568. 


CHA]'.  X.J  AGAINST    RAILWAYS.  613 

lu  such  case,  the  company  or  its  successors  may  be  restrained 
from  afterward  takin^'  without  compensation  another  portion 
of  the  land  not  embraced  in  such  selection.'^'-* 

s;  635.  Property  owner  on  street,  when  entitled  to  in- 
junction against  construction  of  railway;  joinder  of  owners 
as  plaintiffs.  The  doctrine  of  relief  by  injunction  to  prevent 
the  taking  of  private  property  for  a  right  of  way,  as  thus 
far  discussed,  has  relation  only  to  an  actual  taking  of  prop- 
erty in  the  construction  of  a  railway,  and  not  to  cases  where 
the  injury  sustained  consists  in  the  construction  of  a  rail- 
way through  a  public  street  and  to  the  consequent  injury 
resulting  therefrom  to  lot  owners  abutting  on  such  street. 
As  regards  the  latter  class  of  cases,  while  the  adjudicated 
cases  are  far  from  harmonious,  the  rule  may  be  considered 
as  well  established  by  the  clear  weight  of  authority,  as  well 
as  upon  principle,  that  adjacent  proprietors,  whose  lands 
abut  upon  a  street  and  who  own  the  fee  to  the  center  of 
the  street,  subject  only  to  the  public  easement  for  use  as 
a  highway,  may  enjoin  a  railway  company  from  constructing 
and  operating  its  road  upon  the  street  in  front  of  their 
premises  until  due  compensation  has  been  made  for  the 
damages  sustained.  In  such  case,  the  dedication  of  the  street 
by  the  owner  to  the  public  use  as  a  highway  is  not  a  dedi- 
cation to  the  use  of  the  railway  company,  the  two  uses  being 
essentially  different.  The  railway  company  can  not,  there- 
fore, build  upon  the  highway  without  compensation  to  the 
owner,  and  the  injury  sustained  by  an  attempt  so  to  do 
being  in  the  nature  of  a  continuing  trespass,  an  injunction 
is  the  appropriate  remedy.^*'     The  ownar  of  the  fee  in  such 

^9  Warner    v.    Railroad     Co.,  39  Barb.,  494;   Langabier  p.  Fairbury. 

Ohio  St.,  70.  P.  &  N.  R.  Co.,  64  111.,   243;    Bond 

40  Williams  v.  New  York    C.  R.  p.  Penn.  Co.,  171  111.,  508,  49  N.  B., 

Co.,  16  N.  Y.,  97,  affirmed  in  Hen-  545;     Davenport   Bridge   R.    Co.  v. 

derson    v.   New     York     Central  R.  Johnson,   188   111.,  472,    59    N.    E., 

Co.,  78  N.  Y.,  423,  affirming  S.  C,  479;    Rock    Island  &  P.  R.  Co.    v. 

17  Hun,  344;     People    r.    Law,  34  Johnson,  204  111..  488,  68  N.  E.,  549; 


614  INJUNCTIONS.  [chap.  X. 

3ase,  having  title  to  the  center  of  the  street,  subject  only 
to  the  public  easement,  the  legislature  can  not  appropriate 
the  street  to  any  other  use,  or  subject  it  to  any  additional 
servitude,  without  compensation  to  the  owner;  and  the  con- 
struction and  operation  of  a  railway  through  the  street  in 
front  of  complainant's  premises,  without  his  authority  and  ^ 
without  making  compensation  for  the  damages,  is  such  an 
additional  servitude,  which  equity  may  enjoin.^i  So  a  prop- 
erty holder  upon  a  street  in  an  incorporated  town  may  have 
an  injunction  to  prevent  a  railway  company  from  taking 
forcible  possession  of  the  street  and  laying  its  track  thereon, 
without  having  taken  any  measures  to  pay  or  estimate  the 
damages  for  the  injury  resulting  to  complainant  from  such 
occupancy  of  the  street,  the  bill  showing  that  the  railway 
will  greatly  injure  and  depreciate  complainant's  prop- 
erty.^- And  since  the  interests  of  abutting  owners  are  com- 
mon and  there  is  but  a  single  object  to  be  accomplished  by 

Harrington  v.  St.  Paul  &  S.  C.  R.  Riedinger  v.  Marquette  &  Western 

Co.,  17  Minn.,  215;    Street  Railway  R.  Co.,  62  Mich.,  29,  28  N.  W.,  775; 

V.  Cumminsville,  14  Ohio  St.,  523;  Ward  v.  Detroit,  M.  &  M.  R.  Co.,  62 

Railway  Co.  4:.   Lawrence,  38  Ohio  Mich.,  46,  28  N.  W.,  775,  785;    Du- 

St.,   41;     Mikesell    v.    Durkee,    34  bach  v.  Hannibal  &  St.  J.  R.  Co., 

Kan.,  509,  9   Pac,  278;     Hodges  v.  89  Mo.,  483,  1  S.  W.,  86;    O'Connell 

S.  &  R.  R.  Co.,  88  Va.,  653,  14  S.  E.,  v.  Chicago  T.  T.  Co.,  184  111.,  308, 

380.      But   see,   contra,    Spencer  v.  56  N.  E.,  355. 

Point  Pleasant  &  0.  R.  R.  Co.,  23  ^i  Harrington  v.  St.  Paul  &  S.  C. 
West  Va.,  406;  Campbell  v.  Point  R.  Co.,  17  Minn.,  215.  And  in  this 
Pleasant  &  O.  R.  R.  Co.,  23  West  case,  the  facts  found  by  the  court 
Va.,  448;  Smith  v.  Point  Pleasant  upon  the  hearing  showing  that  the 
&  0.  R.  R.  Co.,  23  West  Va.,  451;  operation  of  the  road  was  a  nui- 
Hale  V.  Point  Pleasant  &  0.  R.  R.  sance  in  fact  to  the  adjacent  pro- 
Co.,  23  West  Va.,  454;  Texas  &  prietors,  a  conditional  injunction 
Pacific  R.  Co.  V.  Rosedale  Street  was  granted  agaiist  the  operation 
R.  Co.,  64  Tex.,  80;  Buchner  v.  of  the  road,  the  injunction  to  issue 
Chicago,  M.  &  N.  R.  Co.,  56  Wis.,  if  the  company  did  not  forthwith 
403,  14  N.  W.,  273.  And  see  Gray  institute  and  promptly  prosecute 
V.  Fir.st  Division  St.  P.  &  P.  R.  proceedings  for  condemnation. 
Co.,  13  Minn.,  315;  Hodges  r.  Bal-  •»-  Langabier  v.  Fairbury,  P.  &  N. 
dmore  U.  P.  R..  Co.,  58  Md.,  603;  R.  Co.,  64  HI.,  243. 


CHAP.  X.]  AGAINST   RAILWAYS.  615 

all,   they   may  unite   as   co-complainants   in   a   single   bill  for 
an  injiinction.*'^' 

§  636.  Restrictions  upon  the  doctrine.  Where,  however, 
the  railway  company  has  been  induced  to  construct  its  road 
through  a  street  in  front  of  complainant's  premises  by  his 
express  consent  and  license,  and  has  expended  large  suras  of 
money  in  such  construction,  he  will  not  be  permitted  to  en- 
join the  operation  of  the  road."*^  And  in  cases  of  this  na- 
ture the  relief  is  allowed  only  in  behalf  of  the  property 
holders  themselves,  and  the  people,  being  the  aggregate 
body  politic,  having  no  property  traversed  by  the  line  of 
the  proposed  road,  and  therefore  having  no  property  rights 
to  be  protected,  are  not  entitled  to  relief  by  injunction.'*^  So 
when  the  owner  of  a  lot  abutting  on  a  public  street,  who 
owns  the  fee  to  the  center  of  the  street,  subject  to  the  pub- 
lic easement,  seeks  to  restrain  a  railway  company  from 
operating  its  line  in  front  of  his  premises  until  it  shall  have 
made  compensation,  the  relief  will  not  be  allowed  when  it 
is  not  alleged  that  the  company  claims  or  asserts  a  right 
to  the  use  of  the  soil.'*"  Nor  will  the  relief  be  granted  upon 
mere  general  allegations  of  irreparable  injury,  but  such  facts 
must  be  stated  as  to  show  that  the  apprehensions  of  injury 
are  well  founded.^'''  So  it  is  essential  that  the  property 
owner  should  be  prompt  in  availing  himself  of  his  rem- 
edy; and  when,  with  full  knowledge  of  the  facts,  he  delays 
applying  for  an  injunction  until  after  the  track  is  laid  and 
in  operation,  his  own  laches  may  estop  him  from  relief.** 
And  the  court  in  this  class  of  cases,  balancing  the  relative 
convenience  and  inconvenience  to  the  parties,  has  dissolved 
the   injunction  upon   the   depositing   by   defendant   of  a   suf- 

43  Taylor  v.  Bay  City  S.  R.  Co.,  Ind.,  178;  Roelker  v.  St.  Louis  R. 
80  Mich.,  77,  45  N.  W.,  335.  Co.,  50  Ind.,  127. 

44  Murdock  v.  Prospect  Park  &  47  Payne  v.  McKinley,  54  Cal , 
C.  I.  R.  Co.,  10  Hun,  598.  532. 

45  People  r.  Law,   34   Barb.,  494.         4.s  Osborne  &  Co.  v.  Missouri  Pa- 
48  Cox  V.   Louisville    R.    Co.,    48     cific  R.  Co.,  37  Fed.,  830. 


616  INJUNCTIONS.  [chap.  X. 

ficient  sum  in  court  to  indemnify  plaintiff  for  the  probable 
injury  to  his  property."*'^  And  where  the  court,  considering 
the  relative  convenience  and  inconvenience  of  the  parties, 
concludes  from  the  averments  of  the  answer  that  the  benefit 
to  the  plaintiff'  arising  from  a  preliminary  injunction  would 
be  slight  as  compared  with  the  injury  to  the  public  result- 
ing from  the  granting  of  the  writ,  a  preliminary  injunction 
is  properly  dissolved;  but  inasmuch  as  the  defendant  may 
not  be  able  to  sustain  the  allegations  of  his  answer  by  proof, 
it  is  erroneous  for  the  court,  upon  dissolving  the  injunction, 
to   dismiss   the   bill  for  w^ant   of  equity.'^" 

§  637.  Distinction  as  to  ownership  of  fee  in  street.  A  dis- 
tinction is  also  taken  between  cases  where  the  lot  owner- 
adjacent  to  a  street  owns  the  fee  to  the  center  of  the  street, 
subject  only  to  the  public  easement  or  servitude,  and  cases 
■where  the  fee  of  the  street  is  in  the  municipality  and  where 
permission  or  license  has  been  duly  obtained  from  the  munici- 
pal government  to  construct  a  raihvay  through  the  street. 
And  while  it  is  conceded  that  in  the  former  class  of  cases 
equity  may  properly  enjoin  the  construction  of  a  railw^ay 
through  the  street,  at  the  suit  of  an  abutting  property  owner, 
in  the  latter  class  the  relief  will  be  withheld.  Where,  there- 
fore, the  fee  of  the  street  is  in  the  municipal  corporation 
and  not  in  the  lot  owner  abutting  upon  the  street,  he  can 
not  enjoin  the  use  of  the  street  in  front  of  his  premises  in 
the  construction  or  operation  of  a  raihvay  because  of  non- 
payment of  damages  sustained  by  him,  when  such  use  of  the 
street  is  authorized  by  the  charter  of  the  railway  company 
and  by  permission  of  the  municipal  authorities.'^^     And  when 

4n  Columbus  &  Western  R.  Co.  v.  I.   R.    Co.    r.    Schertz,  84   111.,  135: 

Wltherow,  82  Ala.,  190,  8  So.,  23.  Mills  r.  Parlin,  106  111.,  60;     Penn 

•'"  Mobile  &  M.  R.  Co.  v.  Ala.  M.  Mutual  Life  Ins.  Co.  v.  Heiss,  141 

R.  Co..  116  Ala..  51,  23  So.,  57.  111.,  35.  31  N.  E.,  138,  33  Am.  St. 

M  Stetson  V.  Chicago  &  E.  R.  Co.,  Rep.,  273;    Corcoran  v.  C,  M.  &  N. 

75  111..  74:  Patterson  r.  Chicago.  D.  R.  Co.,  149  111..  291,  37  N.  E.,  68; 

&  V.  R.  Co.    lb.,  588;   Peoria  &  R.  Osborne  r.  Missouri  Pacific  R.  Co., 


CHAP.  X.  ]  AGAINST   KAILWAYS.  617 

a  railway  company  is  about  to  build  a  side  track  in  a  street, 
in  front  of  its  own  premises,  under  a  proposed  ordinance 
from  the  city,  the  owners  of  property  located  in  the  vicinity 
but  not  abutting  upon  the  proposed  improvement  can  not 
enjoin  such  construction,  but  will  be  left  to  their  remedy 
in  damages  in  an  action  at  law.''- 

§  638.  Abandonment  of  awaxd,  effect  of.  Where  commis- 
sioners have  made  an  appraisement  and  an  award  of  damages 
to  the  property  owner  for  injuries  to  his  land  about  to  be 
taken  for  the  use  of  a  railway,  and  an  agreement  of  settle- 
ment is  effected  upon  the  basis  of  such  award,  but  the  award 
is  based  upon  a  plan  of  construction  which  is  subsequently 
changed  and  abandoned  by  the  company,  and  a  new  plan  is 
adopted  resulting  in  much  greater  injury  to  complainant's 
premises,  he  is  entitled  to  an  injunction  against  the  con- 
struction of  the  road  as  proposed  until  due  compensation  shall 
be  made  for  the  increased  damage  resulting  from  the  change 
of  plan.''^^ 

§  639.  Notice  of  meeting  of  commissioners  necessary. 
Under  statutory  proceedings  to  fix  the  amount  of  compen- 
sation for  land  taken  by  a  railway  company  in  the  construc- 
tion of  its  road,  it  is  held  that  notice  to  the  land  owners 
of  the  time  and  place  of  meeting  of  commissioners  appointed 
by  law  to  determine  the  amount  of  compensation  is  neces- 
sary. And  a  failure  upon  the  part  of  the  railway  company 
to  give  such  notice  is,  therefore,  held  to  afford  sufficient 
ground  for  enjoining  the  railway  company  from  proceeding 
to  acquire  the  lands.-""'^  But  a  property  owner  can  not  en- 
join a  railway  company  from  taking  possession  of  his  land 
and  constructing  its  road  thereon,  because  of  want  of  notice 

147  U.    S.,   248,    13    Sup.  Ct.  Rep.,         ■'■■■  Carpenter  v.   Easton    &    A.  R. 
299;    Burrus  v.  City  of  Columbus,     Co.,  9  C.  E.  Green,  249. 
105  Ga.,  42,  31  S.  E.,  124.  ■'*  New  Orleans,  M.  &  C.   R.   Co. 

^2  Truesdale      r.      Peoria     Grape     v.   Frederic,   46  Miss.,   1.     But  see 
Sugar  Co.,  101  111.,  561.  Wilson  r.  Baltimore  &  P.  R.  Co.,  5 

Del.  Ch.,  524. 


618  INJUNCTIONS.  [chap.  X. 

of  the  condemnation  proceedings,  when  although  he  had  no 
notice  of  the  original  proceeding,  he  nevertheless  appealed 
from  the  judgment,  since  such  appeal  is  held  to  operate 
as  a  waiver  of  the  defect  as  to  the  jurisdiction  of  his  per- 


son 


5.5 


§  640.  Failure  to  construct  cattle  gaps.  Where  the  owner- 
of  lands  has  conveyed  to  a  railway  company  a  right  of 
way  through  his  premises,  upon  a  verbal  assurance  that 
the  company  would  construct  the  necessary  "cattle  gaps"  for 
the  passage  of  cattle,  a  failure  on  the  part  of  the  com- 
pany to  comply  with  such  agreement  will  not  warrant  an 
injunction  to  prevent  the  operation  of  its  road  until  the 
agreement  is  complied  with,  since  the  indirect  effect  of  such 
relief  would  be  to  compel  the  company  to  construct  the  cat- 
tle gaps,  and  the  power  thus  to  enforce  a  specific  construction 
is  one  which  is  rarely  exercised  by  a  court  of  equity.^^ 

§  641.    Railway  enjoined  from  taking  land  for  subsidiary 

purposes.  It  is  also  held,  where  a  railway  company  is  by 
its  act  of  incorporation  authorized  to  take  and  use  such  lands 
as  are  necessary  for  its  railway  purposes,  that  it  is  not  there- 
by authorized  to  take  compulsorily  and  permanently  lands 
which  are  only  to  be  used  for  subsidiary  purposes,  such 
as  excavating  materials  therefrom  for  repairing  and  embank- 
ing its  own  road,  or  for  the  construction  of  a  subsidiary 
road,  and  that  an  injunction  may  be  granted  to  restrain  the 
company   from    taking   proceedings   to    procure    such    lands. ^" 

§  642.  Use  of  road  by  another  company.  A  land  owner 
whose  property  has  been  taken  by  a  railway  company  for 
the  construction  of  its  road,  and  who  has  obtained  a  judg- 
ment for  damages  therefor,  is  not  entitled  to  enjoin  another 
company,  the  successor  of  the  former,  from  using  the  road. 

•'.r.  Rheiner  v.  Union  D.  S.  R.  &  T.        ^'-  Eversfield     v.     Mid-Sussex     R. 

Co.,  31  Minn.,  289,  17  N.  W.,  623.  Co.,  3  De  Gex  &  J.,  286.  affirming 

•-."Cooli  r..  North  &  South  R.  Co,  S.  C,   1   Gif.,   1.53;     Dodd   r.  Salis- 

46  Ga.,  618.  bury  &  V.  R.  Co.,  1  Gif.,  158. 


HAP.  X.]  AGAINST   EAILWAYS.  619 

And  the  reason  for  refusing  the  relief  in  such  case  is  found 
in  the  fact  that,  if  complainant  still  has  title  to  the  prop- 
erty, his  remedy  is  in  ejectment;  and  if  he  has  no  title, 
his  judgment  stands  in  lieu  thereof,  and  he  may  pursue  his 
legal  remedy."^  *  It  has  been  held,  however,  that  where  a 
foreign  railway  company  is  using  by  sufferance  the  line 
of  a  domestic  company,  it  may  be  enjoined  from  using  that 
poition  of  the  line  running  through  plaintiff's  land  until  the 
damages  assessed  for  right  of  way  are  paid.^'-* 

§  643.  Laches  and  acquiescence  of  property  owner.  As  in 
all  cases  of  the  exercise  of  the  strong  arm  of  equity  by  -in- 
junction, the  right  to  the  relief  may  be  lost  by  one's  own 
negligence  and  delay  in  seeking  protection.  And  where  the 
owner  of  land  over  which  a  railway  has  been  constructed 
has  stood  quietly  by  and  neglected  to  insist  upon  compen- 
sation at  the  time  his  land  was  taken,  and  has  waited  until 
the  road  was  in  full  operation  before  asserting  his  rights, 
he  will  not  be  permitted  to  restrain  its  operation,  his  only 
remedy  being  to  have  his  damages  assessed  and  enforced 
against  the  railroad.^^  In  such  case  an  injunction,  if  granted 
at  all,  should  only  be  allowed  as  a  last  resort,  and  after  all 

ss  Remshart  v.  The  Savannah  &  son,    21    Fla.,    146;     Griffin   v.    Au- 

Charleston  R.  Co.,  54  Ga.,  579.  gusta  &  K.  R.  Co.,  70  Ga.,  164;    Or- 

59  Holbert  v.  St.  Louis,  K.  C.  &  gan  v.  M.  &  L.  R.  Co.,  51  Ark.,  235, 
N.  R.  Co.,  45  Iowa,  23.  11  S.  W.,  96.   And  in  Goodin  i:  Cin- 

60  Hentz  v.  Long  Island  R.  Co.,  cinnati  R.  Co.,  18  Ohio  St.,  169,  the 
13  Barb.,  646;  Erie  R.  Co.  v.  Dela-  court  say,  Welch,  J.:  "Where  a 
ware  R.  Co.,  6  C.  E.  Green,  283:  party  stands  by,  as  we  must  pre- 
Goodin  v.  Cincinnati  R.  Co.,  18  sume  the  plaintiffs  to  have  done 
Ohio  St.,  169;  Midland  R.  Co.  v.  in  the  present  case,  and  silentlv 
Smith,  113  Ind.,  233,  15  N.  E.,  256;  sees  a  public  railroad  constructed 
Sherlock  v.  Louisville,  N.  A.  &  C.  upon  his  land,  it  is  too  late  foi 
R.  Co.,  115  Ind.,  22,  17  N.  E.,  171:  him,  after  the  road  is  completed. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  or  large  sums  have  been  expended 
Beck,  119  Ind.,  124,  21  N.  E.,  471;  on  the  faith  of  his  apparent  acqui- 
Porter  v.  Midland  R.  Co.,  125  Ind.,  escence,  to  seek  by  injunction,  or 
476,  25  N.  E.,  556;  Midland  R.  Co.  otherwise,  to  deny  to  the  railroad 
i\  Smith,  135  Ind.,  348,  35  N.  E.,  company  the  right  to  use  the  prop- 
284;    Pensacola  &  A.  R.  Co.  t'.  Jack-  erty.       Considerations     of     public 


620  JNJUNCTIONS.  [chap.  X. 

ordinary  means  of  relief  have  proved  ineffectual."^  And 
where  the  owner  of  real  estate  has  invited  a  railway  com- 
pany to  enter  upon  his  land  and  has  promised  a  right  of 
way,  though  his  promise,  being  verbal,  is  not  binding,  yet 
if  he  allows  the  company  to  go  on  with  the  construction  of 
its  road,  he  can  not  afterward  restrain  the  use  of  the  track 
over  his  land  until  compensation  is  made.**-  And  where  a 
company  has  been  permitted  under  claim  of  right  for  twenty 
years  to  occupy  the  street  of  a  city  fronting  complainant's 
premises,  without  objection  or  remonstrance,  and  by  such 
long  acquiescence  has  been  induced  to  enter  into  a  contract 
with  the  city,  binding  itself  to  build  a  depot  and  platform 
in  such  manner  as  will  cause  but  little  inconvenience  to 
complainant  in  addition  to  that  arising  from  defendant's 
track,  an  injunction  will  not  be  granted  to  restrain  the 
erection.*'^  So  a  railway  company  has  been  allowed  to  en- 
join the  prosecution  of  an  action  of  ejectment  for  a  strip 
of  land  over  which  its  road  was  constructed,  the  propert}^ 
owner  having  acquiesced  in  such  construction  and  operation 
of  the  road  for  a  period  of  twenty  years.""*  And  where  a 
telegraph  company  had  constructed  its  lines  over  the  lands 
in  question  while  they  were  owned  by  plaintiff's  grantor, 
and  plaintiff'  permitted  more  than  two  years  to  elapse  after 

policy,  as  well  as  recognized  prin-  ly  interested  in  the  road,  as  stock- 
ciples  of  justice  between  parties,  holders  and  creditors,  have  a  right 
require  that  we  should  hold  in  to  insist  on  the  application  of  the 
such  cases  that  the  property  of  rule  that  he  who  will  not  speak 
the  owner  can  not  be  reclaimed,  when  he  should,  will  not  be  al- 
and that  there  only  remains  to  lowed  to  speak  when  he  would." 
him  a  right  of  compensation.  The  '■!  Hentz  v.  Long  Island  R.  Co., 
injunction     in     the     present    case  13  Barb.,  646. 

might  have  been  sought  at  the  first         "'^  Pettibone  r.  La  Crosse,  etc.,  14 

known   attempt,  or  even   threat  to  Wis.,  443. 

despoil    the  canal,  or   to   construct         '•-  Higbee  r.   Camden  &  A.   R.   & 

the   railroad    upon     its    line.     The  T.  Co.,  5  C.  E.  Green,  485. 
omission   to  do   so    is    an   implied         •"-«  Paterson,  N.  &  N.  Y.  R.  Co.  c. 

assent.  The  work  being  completed,  Kamlah,   42  N.    J.   Eq.,   93,   6  Atl., 

the  public,  as  well  as  those  direct-  444. 


CHAP.  X.]  AGAINST   EAILWAYS.  621 

acquiring  title  before  seeking  relief,  his  laches  was  held  a 
sufficient  bar  to  an  injunetion.^'^  But  where  a  railway  com- 
pany, after  constructing  its  road  Upon  plaintiff's  land,  has 
become  hopelessly  insolvent,  mere  delay  or  inaction  upon 
the  part  of  the  plaintiff  in  not  having  sooner  sought  equit- 
able relief  will  be  no  bar.'''*'' 

i;  644.  Company  not  enjoined  from  condemnation  pro- 
ceedings. Equity  will  not  restrain  a  railway  company  from 
proceeding  with  an  action  in  a  court  of  competent  jurisdic- 
tion to  condemn  lands  for  the  use  of  its  road,  upon  grounds 
of  objection  which  are  available  and  may  be  urged  in  the 
court  in  which  the  condemnation  proceedings  are  pending; 
it  being  sufficient  ground  for  refusing  to  interfere  by  in- 
junction in  such  case  that  there  is  ample  remedy  at  law.®''' 
Nor  will  a  railway  company  be  enjoined  from  prosecuting 
proceedings  by  condemnation  to  acquire  title  to  real  estate 
necessary  for  the  purposes  of  its  incorporation,  in  the  ex- 
ercise of  the  right  of  eminent  domain,  upon  the  ground  of 
the  unconstitutionality  of  the  statute  authorizing  such  right, 
when  that  question  can  be  passed  upon  the  adjudicated  in 
the  condemnation  proceedings  themselves  before  any  injury 
can  occur  to  the  property  holder.*"^  So  equity  will  not  en- 
join a  sheriff'  from  summoning  a  jury  to  assess  damages 
under  condemnation  proceedings  about  to  be  instituted  by 
a  railway  company  upon  the  ground  that  the  land  sought 
to  be  condemned  is  already  devoted  to  a  public  use,  since 
that  objection  may  be  raised  equally  as  well  as  a  defense 
to  the  condemnation  suit.*"'^  And  the  defendant  land  owner 
can  not  enjoin  proceedings  by  a  railway  company  to  con- 
demn land  for  the  use  of  its  road,  upon  the  ground  that  the 

or-  Western  Union  Tel.  Co.  v.  Jud-  etc.,  v.  Baltimore,  C.  &  E.  M.  P.  R. 

kins,  75  Ala.,  428.  Co.,  81  Md.,  247,  31  Atl.,  854.    And 

"«  Coombs  V.  S.  L.  &  F.  D.  Co.,  9  see,  ante,  §  90. 

Utah,  322,  34  Pac.  248.  es  Kip  v.  New  York  &  H.  R.  Co., 

6T  Western    Maryland    R.    Co.    v.  6  Hun,  24. 

Patterson,  37  Md.,  125;     President,  «»  Waterloo  W.  Co.  v.  Hoxie,   89 

Iowa.  317,  56  N.  W..  499. 


622  INJUNCTIONS.  [chap.  X. 

company  does  not  intend  to  build  the  road  for  whieh  it  is 
seeking  to  appropriate  the  lands,  or  because  proceedings  in 
quo  warranto  are  pending  against  the  company  for  the  for- 
feiture of  its  franchise.'^^ 

§  645.  Condemnation  of  one  railway  by  another.  Upon 
similar  principles  it  is  held  that  where  a  railway  company 
is  seeking  by  proceedings  under  laws  of  the  state  to  con- 
demn lands  of  another  company  under  the  power  of  eminent 
domain,  and  the  defendant  company  by  its  cross-bill  seeks 
an  injunction  upon  grounds  which  would  constitute  a  legal 
defense  to  the  condemnation  proceedings  upon  the  final  hear- 
ing, the  plaintiff  company  will  not  be  restrained  from  en- 
tering upon  or  taking  possession  of  the  property  which  it 
seeks  to  condemn,  and  defendant  will  be  left  to  make  such 
defense  upon  the  trial  of  the  condemnation  suit.'^^  Nor 
will  such  proceedings  be  enjoined  upon  the  alleged  ground 
that  the  defendant  is  not  acting  in  good  faith  for  the  pur- 
pose of  constructing  a  railroad  but  is  proceeding  solely  for 
the  purpose  of  preventing  plaintiff,  another  railroad  com- 
pany, from  constructing  its  road  over  the  land  in  question.'^^ 
A  railway  company  is,  however,  entitled  to  the  protection 
of  a  court  of  equity  by  injunction  to  prevent  another  com- 
pany from  taking  possession  of  complainant's  right  of  way 
under  a  fraudulent  proceeding  for  its  condemnation,  with- 
out making  complainant  a  party  thereto,  and  without  mak- 
ing   any   compensation    for    the    right    of   way    so    taken.'^^ 

§  646.  Mill  owners  enjoined  from  flooding  track.  An  in- 
junction is  the  appropriate  remedy  to  protect  a  railway  com- 
pany in  laying  its  track  over  lands  which  have  been  prop- 
erly condemned,  by  restraining  mill  owners  from  keeping  the 
water   in   their   mill    dam   at   such    an   unusual   height    as   to 

70  Aurora  &  Cincinnati  R.  Co.  v.  fornia  &  N.  Ry.  Co.,  48  C.  C.  A.,  517, 
Miller,  56  Ind.,  88.  109  Fed.,   509. 

71  California  Pacific  R.  Co.  r.  7;t  Cincinnati,  L.  &  C.  R.  Co.  v 
Central  Pacific  R.  Co.,  47  Cal.,  549.  Danville  &  V.  R.  Co.,  75  111.,  113. 

72  Eureka  K.   R.  R.   Co.   r.   Cali- 


CHAP.  X.]  AGAINST    RAILWAYS.  623 

flood  complainant's  track  and  to  prevent  its  operations.  And 
such  an  injunction,  commanding  the  mill  owners  to  refrain 
from  raising  the  water  beyond  a  specified  height,  is  not 
regarded   as   a   mandatory   injunction^* 

§  647.  Abandoned  road-bed.  Y/here  plaintiff,  a  railway 
company,  claims  title  to  the  road-bed  of  another  company 
under  a  contract  or  a  lease  from  the  latter  company,  but 
has  abandoned  such  road-bed  for  many  years,  and  it  has 
been  in  part  inclosed  and  used  by  adjacent  owners,  and 
defendant,  a  railway  company,  under  a  claim  of  title  from 
some  of  the  adjacent  owners,  enters  upon  the  road-bed  and 
begins  the  work  of  grading  and  constructing  track  thereon, 
it  will  not  be  enjoined  in  the  first  instance  at  the  suit  of 
the  plaintiff  company,  no  injury  being  shown  which  can 
not  be  compensated  in  damages  at  law.'^® 

§  648.  Violation  of  contract  by  city.  "When  a  railway  com- 
pany is  given  a  right  of  way  through  the  streets  of  a  city, 
upon  the  undertaking  that  another  company  also  desiring 
to  lay  its  track  upon  the  same  streets  shall  be  allowed  to 
do  so  only  upon  paying  the  first  company  one-half  the  ex- 
pense of  grading,  equity  may  enjoin  the  payment  of  the 
money  by  the  second  company  to  the  city  authorities  in  vio- 
lation of  the  contract.  And  in  such  case  the  relief  may  be 
allowed  at  the  suit  of  a  receiver  of  the  former  road,  a  court 
of  equity  being  in  possession  of  the  road  and  having  jurisdic- 
tion to  stop  the  fund.'''*' 

T4  Longwood  V.  R.  Co.  v.  Baker,     T.  &  W.  R.  Co.,  13  Hun,  60. 
12  C.  E.  Green,  166.  t6  Southwestern  R.  Co.  v.  Screv- 

«  Troy  &  B.  R.  Co.  v.  Boston,  H.    en,  45  Ga.,  613. 


CHAPTER  XL 

OF    INJUNCTIONS   AGAINST   WASTE. 

I.  Origin  and  Natihe  of  the  Jurisdiction §  649 

II.  Destruction    of    Timber 671 

III.  Equitable    Waste 680 

IV.  Parties    686 

I.     Origin   and  Nature  op  the  Jurisdiction. 

§  649.    The  jurisdiction  of  recent  origin;  remedy  at  common  law. 

650.  Distinction   between   waste  and   trespass. 

651.  Plaintiff's  title  must  be  clear;  cases  where  relief  refused;  facts 

must  be  alleged. 

652.  Title  must  be  established  at  law. 

653.  Removal  of  improvements  by  defendants  and  insolvency. 

654.  Adverse  possession;    use  of  land  pending  ejectment. 

655.  Threats  of  waste  sufficient;  past  waste. 

656.  Injunction  not  granted  against  stranger  to  the  title. 

657.  Relief  against  vendee  in  possession. 

658.  Right  of  purchaser  at  judicial  sale  or  of  attaching  creditor  to 

injunction. 

659.  Changing  character  of  premises  by  tenant. 

660.  Improper   tillage;    removal   of   manure;    beneficial   acts   by   de- 

fendant. 

661.  Retaining  injunction  pending  writ   of  error  at   law. 

662.  Injunction    pending   action    at   law. 

663.  Purchaser  under  decree  enjoined;   removal  of  mineral  deposits 

by  tenant. 

664.  Removal  of  coal. 

665.  Insolvency   of   surety   of   administrator. 

666.  When  quarrying  enjoined;    mining  enjoined  pending  ejectment. 

667.  Diligence   required,   especially   in   cases  of  mines. 

668.  Injunction   before   answer. 

669.  Accounting  an  incident  to  the  injunction. 

670.  Accounting  may   be   had   without   injunction. 
670a.  Injunction  against  railway  until  compensation. 

§649.     The  jurisdiction  of  recent  origin;  remedy  at  com- 
mon law.     'I'lic  jiicisdiclion  of  equity  in  restraining  the  com- 

G24 


CHAP.  XI.  J  AGAINST     WASTi:.  625 

mission  of  waste  is  of  comparatively  modern  origin  and  rests 
upon  the  necessity  of  preventing-  irremediable  injury.  At 
common  law  the  mode  of  proceeding  was  by  writ  of  prohi- 
bition issuing  out  of  the  Court  of  Chancery,  which,  if  in- 
effectual, was  followed  by  an  original  writ  of  attachment 
from  the  same  source,  returnable  in  the  courts  of  common 
law.  Originally  this  proceeding  was  confined  to  tenants  in 
dower,  tenants  by  curtesy,  and  guardians  in  chivalry,  al- 
though it  was  afterward  extended,  by  statute,  to  other  per- 
sons.^ The  writ  of  estrepement  was  also  a  common  law 
writ,  whose  purpose  was  the  staying  of  waste  in  any  action 
real,  after  judgment  and  before  possession  delivered.  Its 
use,  however,  did  not,  at  common  law,  extend  to  the  case  of 
waste  committed  by  the  tenant  pendente  lite,  and  it  was 
not  until  the  statute  of  Gloucester  -  that  its  use  was  enlarged 
to  meet  the  case  of  waste  pending  the  suit.-"^  The  writ  of 
estrepement  being  confined  to  actions  real,  it  became  neces- 
sary, in  cases  of  ejectment,  to  apply  to  equity  to  supply  the 
deficiencies  of  the  common  law  by  restraining  waste  pend- 
ing an  action  of  ejectment  to  try  the  title,  and  this  would 
seem  to  be  the  origin  of  the  jurisdiction  of  equity  in  cases 
of  waste.^ 

§  650.  Distinction  between  waste  and  trespass.  The  dis- 
tinction between  waste  and  trespass  consists  in  the  former 
being  the  abuse  or  the  destructive  use  of  property  by  one 
who,  while  not  possessed  of  the  absolute  title  thereto,  has  yet 
a  right  to  its  legitimate  use ;  trespass  being  an  injury  to 
property  by  one  who  has  no  right  whatever  to  its  use.  And 
an  injunction  issued  pending  the  trial  of  the  title  at  law  in 
an  action  of  trespass  quare  clausum  is  ancillary  or  auxiliary 
to   the   action   at   law   and   follows   its   fortunes.     It   follows, 

1  Jefferson  v.  Bishop  of  Durham,        ■■  3  Black.  Com.,  227,  228. 
1  Bos.  &  Pull.,  120.  *2  Story's  Eq.,  §  911;     3   Black. 

^  6  Edw.  I.,  Ch.  13.  Com.,  227,  228. 

40 


626  INJUNCTIONS.  [chap.  XI. 

therefore,   that   when   plaintiff  recovers   a    general   judgment 
in  his  action  at  law,  the  writ  will  be  made  perpetual.^ 

§  651.  PlaintiflF's  title  must  be  clear;  cases  where  relief 
refused;  facts  must  be  alleged.  It  may  be  laid  down  as  a  gen- 
eral rule  that  equity  will  not  restrain  waste  except  upon  un- 
questioned evidence  of  complainant's  title,  and  where  defend- 
ant is  in  possession,  under  adverse  title,  the  relief  will  be  re- 
fused.^ Nor  will  equity  interfere  by  injunction  to  prevent 
waste  when  complainant's  title  is  not  clear,  since  the  relief  is 
granted  only  when  the  title  is  free  from  disputed  And  upon  a 
motion  for  an  injunction  to  stay  waste  a  particular  title  must 
be  shown  by  complainant.^  And  when  there  is  grave  doubt 
whether  an  action  at  law  could  be  maintained  for  the  alleged 
waste  it  is  proper  to  refuse  a  preliminary  injunction.''  So 
when  the  question  of  the  right  to  do  the  thing  which  it  is 
sought  to  restrain  as  waste  is  doubtful  and  rests  upon  the 
construction  of  an  act  of  parliament  which  is  doubtful,  equity 
will  not  grant  the  injunction  in  the  first  instance.^  ^  And 
when  defendants  are  acting  in  good  faith  and  for  the  public 

5  Hill  f.  Bowie,  1  Bland,  593.  waste,  stating  that  the  defendant 
«  Pillsworth  v.  Hopton,  6  Ves.,  claimed  by  a  title  adverse  to  his, 
51;  Davies  v.  Leo,  lb.,  784;  Talbot  he  stated  himself  out  of  court  as 
V.  Hope  Scott,  4  Kay  &  J.,  96;  to  the  injunction."  The  reporter 
Poindexter  v.  Henderson,  Walk,  adds:  "His  lordship  having  in- 
( Miss.),  177;  Nevitt  i?.  Gillespie,  1  quired  if  the  bar  knew  any  in- 
How.  (Miss.),  108.  "I  do  not  rec-  stance,  and  none  being  pro- 
ollect,"  says  Lord  Eldon  in  Pills-  duced,  would  not  make  the  order." 
worths. Hopton,  "that  the  court  has  See  also  Wearin  v.  Munson,  62 
ever  granted  an  injunction  against  Iowa,  466.  But  see,  contra,  Shu- 
waste  under  any  such  circum-  brick  v.  Guerard,  2  Desaus.  Eq., 
stances:     the  defendant  in  posses-  616,  note. 

sion:  the  tenants  having  attorned:  "Lowe    i\   Lucey,   1    Jr.   Eq.,   93; 

the   plaintiff   having  failed   in   hi^  Nethery  v.  Payne,  71  Ga.,  374. 

ejectment:     both    setting    up    pre-  •'*  Whitelegg      r.      Whitelegg,     1 

tenses   of   title.      I    remember    per-  Browne  C.  C,  58. 

fectly   being   told    from   the   bench  f>  Lurting  r.  Conn,  1  Ir.  Ch.,  273; 

very  early  in  my  life,  that  if  the  Nethery  v.  Payne,  71  Ga.,  374. 

plaintiff  filed  a  bill  for  an  account,  i"  Field  r.  Jackson,  Dick.,  599. 
and     an     injunction     to     restrain 


CHAP.  XI.]  AGAINST    WASTE.  627 

benefit,  under  an  act  of  incorporation  from  the  state,  they 
will  not  be  enjoined  while  they  do  not  exceed  their  cor- 
porate powers,  even  though  they  are  committing  great  and 
lasting  injury  to  complainant's  estate.^ ^  Nor  will  an  injunc- 
tion be  allowed  where  it  does  not  appear  that  the  injury  will 
be  destructive  to  the  estate  of  inheritance  or  productive  of 
irreparable  mischief.*-  Nor  will  mere  allegations  of  irrepar- 
able injury  suffice,  but  the  facts  must  be  shown  which  go  to 
constitute  the  injury  alleged  to  be  irreparable.^^  And  where 
the  injury  complained  of  is  susceptible  of  perfect  pecuniary 
compensation,  and  one  for  which  satisfaction  in  damages  can 
be  had  at  law,  the  injunction  will  be  withheld.*^  So  where 
the  right  to  the  premises  is  in  doubt,  pending  an  action  of 
ejectment  at  law,  the  relief  will  not  be  granted,  on  the  general 
principle  that  where  the  right  is  doubtful  equity  will  not  in- 
terfere.*'^ And  pending  an  action  for  the  recovery  of  real 
property,  the  title  being  in  dispute,  equity  will  not  restrain 
a  defendant  in  possession  from  the  ordinary  and  natural  use 
and  enjoyment  of  the  premises.*^  And  an  injunction  granted 
to  stay  waste  pending  an  action  of  ejectment  at  law  will  be 
dissolved  on  denial  of  complainant's  title,  especially  if  he  is 
negligent    in   trying   the   title   at   law.*'^ 

§  652.  Title  must  be  established  at  law.  The  jurisdiction 
of  equity  in  cases  of  waste  is  not  in  derogation  of  the  juris- 
diction of  courts  of  law,  but  rather  in  aid  of  the  legal  right. 
Hence  arises  the  limitation  that  it  will  be  exercised  only 
when    complainant    has    established    or    is    endeavoring   to    es- 

11  Scudder  v.  Trenton,  Saxt,  694.         is  Pillsworth  v.  Hopton,    6    Ves., 

12  Hamilton    v.    Ely,    4    Gill,    34;  51;  Field  «'.  Jackson,  Dickens,  599; 
Amelung  v.   Seekamp,  9  Gill  &  J.,  Storm  v.  Mann,  4  Johns.  Ch.,  21. 
468.  10  Snyder    r.    Hopkins,    31    Kan., 

13  Bogey  V.   Shute,   1   Jones   Eq.,  557,  3  Pac,  367. 

180.  1^  Higgins  v.  Woodward,    Hopk., 

i4Cockey  v.  Carroll,  4  Md.  Ch.,     342. 
844;    Amelung  v.  Seekamp,  9  Gill 
&  J.,  468. 


628  INJUNCTIONS.  [chap.  XI. 

tablisli  his  title  at  law.  Aud  on  au  application  for  an  in- 
junction, defendant  being  in  exclusive  possession  under  color- 
able title,  equity  will  not  sustain  the  legal  estate  in  the  ab- 
sence of  proceedings  at  law  to  try  the  title  of  complainant.^* 
And  where  an  injunction  has  been  granted,  the  title  being 
in  dispute,  it  will  be  dissolved,  no  action  at  law  having  been 
undertaken  to  try  the  title.^''  Nor  wall  the  injunction  be  re- 
tained on  the  ground  that  one  of  the  defendants  has  brought 
an  action  of  trespass  quarc  clausum  against  complainant  to 
determine  the  legal  title,  since  that  is  purely  a  legal  ques- 
tion.2" 

§  653.  Removal  of  improvements  by  defendants  and  insol- 
vency. But  it  has  been  held  sufficient  to  sustain  a  bill  for 
an  injunction  to  stay  waste  and  prevent  the  removal  of  im- 
provements, that  the  bill  alleges  that  complainant  is  the  owner 
and  entitled  to  the  possession  of  the  premises,  with  the  im- 
provements, and  that  defendants  are  in  possession  and 
threaten  to  destroy  the  improvements,  and  that  they  are  in- 
solvent and  unable  to  respond  in  pecuniary  damages.-'  And 
where  a  tenant  for  life  is  about  to  tear  down  a  house  for  the 
purpose  of  erecting  a  new  and  better  building,  the  remainder- 
man   is    entitled    to    an    injunction    restraining    such    waste.22 

1^  Bogey   r.   Shute,   4   Jones    Eq.,  should  have  a  reasonable  time  al- 

174.     In    this    case    an    injunction  lowed   for   that   purpose.     For   the 

was  sought  on  the  ground  of   the  court  of  equity  acts  in  such  cases, 

insolvency   of   the    defendant    and  not  as  superseding  the  jurisdiction 

injury  to  the  substance  of  the  es-  of  the  courts  of  law  over  a  legal 

tate  by  acts   in   the  nature  of  de-  title,  but  only  in  aid    of    a    legal 

structive  waste.    The  court,  Ruffin,  remedy,      defective     because     dila- 

.1.,  say:     "Such  a  bill   can  not   be  tory." 

sustained  against  one  in  exclusive  '-'Brown  /■.  Folwell,  3  Halst.  Ch., 

possession — claiming,   colorably    at  593. 

least,  the  absolute  estate,  until  the  -"  Wright   /•.  Grist,  1    Busb.  Eq., 

plaintiff  has  established  his  title  ai  203. 

law — or,   at  all   events,   an   injun(^  -'  .Meadow      Valley      M.     Co.     r. 

tion  can  be  granted  only  when  the  Dodds,  (5   Nev.,  261. 

plaintiff    is   endeavoring    to    estal>-  -=  Dooly    r.    Stringham,    4    Utah, 

lish  his  title  at  law,  and    until    he  107,  7  Pac,  405. 


CHAP.  XI.]  AGAINST    WASTE.  629 

Where,  however,  defendant  has  given  ample  security  for 
all  damages  which  may  be  sustained  by  plaintiff  in  such 
case,  an  injunction  Avill  be  withheld,  there  being  an  adequate 
remedy  at  law.--"' 

§654.  Adverse  possession;  use  of  land  pending  ejectment. 
Where  reliance  is  had  upon  adverse  possession  to  warrant 
the  interference,  such  possession  must  be  accompanied  with 
a  positive  and  exclusive  claim  of  the  entire  title.  And 
if  complainant's  title  be  subordinate  to,  or  admit  the  exist- 
ence of  a  superior  title,  such  possession,  regardless  of  its- 
duration,  will  not  be  held  adverse,  and  equity  will  not  in- 
terfere.-"* And  pending  an  action  of  ejectment  to  try  the: 
title,  defendant  will  not  be  restrained  from  using  the  land 
in  the  ordinary  course  of  agriculture,  and  clearing  off  timber 
and  erecting  buildings  for  that  purpose.-'^ 

§  655.  Threats  of  waste  sufficient ;  past  waste.  To  war- 
rant the  interference  it  is  not  essential  that  actual  and 
serious  waste  should  have  been  already  committed  ;^^ 
although  in  general  equity  will  only  interfere  to  pre- 
vent future  waste  where  complainant  is  remediless  at 
law,  or  where  a  discovery  is  necessary.-'^  And  where  the 
waste  is  trivial,  equity  wnll  not  interfere  unless  an  intention 
to  commit  further  waste  is  shown.^s  But  '2  it  can  be  show^n 
that  an  intention  exists  to  commit  waste,  or  that  threats  of 
its  commission  have  been  made,  the  court  may  interfere.-*^ 
And  the  fact  that  defendant  denies  the  commission  of  waste 
since  the  filing  of  the  bill  will  not  prevent  the  granting  of 
the  injunction,  when  he  has  admitted  that  he  has  committed 
waste.-'^  Nor  is  it  sufficient  to  warrant  the  court  in  dissolv- 
ing an   injunction   against   waste   that   the   defendant,   in   his 

23  Campbell  r.  Coonradt,  26  Kan.,  -•  Winship  v.  Pitts,  3  Paige,  259. 

67.  -s  Coffin  V.  Coffin,  Jac.  71. 

2-*  Dean  r.  Brown,  23  Md.,  11.  -'"  Gibson  v.   Smith,   2   Atk.,   182. 

'^''  Thompson  r.  Williams,  1  Jones  -'o  Attorney-General    v.     Burrows, 

Eq.,  176.  Dick.,  128. 

ae  Gibson    c.    Smith,   2   Atk.,    182. 


630  INJUNCTIONS.  [chap.  Xf. 

answer,  swears  that  he  has  not  committed  any  waste  since 
the  filing  of  the  bill,  since  as  he  admits  the  commission  of 
waste  before,  the  court  will  presume  that  he  may  do  further 
waste,  and  will  therefore  continue  the  injunction.^^  Where, 
however,  there  is  no  claim  of  right  to  commit  acts  amount- 
ing to  waste,  and  no  intention  to  commit  such  acts,  an  in- 
junction should  not  be  granted  merely  because  a  tenant  in 
possession  had  committed  waste  at  some  previous  time.^- 
And  equity  will  not  enjoin  upon  a  bill  charging  the  commis- 
sion of  past  acts  of  waste  only,  when  there  is  no  averment  of 
any  future  injury  anticipated  or  threatened,  since  for  past 
injuries  an  action  at  law  for  damages  will  afford  the  appro- 
priate relief,  and  equity  only  enjoins  because  of  a  threatened 
injury  in  the  future.^^ 

§  656.     Injunction    not    granted    against    stranger    to    the 

title.  It  is  an  old  and  well  established  doctrine  pertain- 
ing to  the  jurisdiction  of  equity  by  injunction  against  waste, 
that  it  is  not  exercised  as  against  a  stranger  to  the  prem- 
ises, without  interest  or  title  therein,  or  when  no  privity 
exists  between  the  parties  to  the  action,  defendants  being 
regarded  in  such  cases  as  mere  trespassers,  and  as  such 
liable  to  an  action  of  trespass  at  law.-^-*  Nor  will  equity  in- 
terfere by  injunction  upon  the  ground  of  waste  when  defend- 
dant  is  a  mere  stranger,  although  he  has  been  guilty  of  a 
forcible  entry,  since  he  may  be  immediately  dispossessed,  and 
equity  will  not,  therefore,  interfere.^^'  So  if  the  facts  do  not 
show  privity  of  title,  or  irremediable  injury,  the  injunction, 
if  already  granted,  will  be  dissolved.^^  And  one  who  has 
neither  privity  of  estate  nor  possession,  and  who  has  neither 

•"'1  Anon.,  3  Atk.,  485.  See  also  Congleton  r.   Mitchell,   12 

32  Crockett   r.   Crockett,    2    Ohio  Ir.   Eq.,  45. 

St.,  180.  '■'■■•  Mortimer    r.    Cottrell,     2     Cox, 

ST  Owen  V.  Ford,  49  Mo.,  436.  205. 

•■!4  Mogg     V.     Mogg,    Dick.,    670;  ••'' Georges  r.  Detmold,  1  Md.  Ch., 

Wrixon  v.  Condran,  1   Ir.  Eq.,  380.  371. 


CHAP.  XI.]  AGAINST    WASTE.  631 

established  his  title  at  law  nor  brought  ejectment  to  try  the 
title,  is  not  entitled  to  an  injunction.-'^''' 

§  657.  Relief  against  vendee  in  possession.  A  vendor  of  real 
estate  who  retains  title  to  the  land  as  security  for  the  purchase 
money  may  have  an  injunction  against  the  vendee  who  is  in  pos- 
session and  is  committing  waste  where  such  action  results  in  di- 
minishing the  value  of  the  security  and  the  vendee  is  alleged  to 
be  insolvent.'"^^  So  in  an  action  to  foreclose  a  vendor's  lien  for 
unpaid  purchase  money  it  is  proper  to  enjoin  the  vendee  in 
possession  from  the  commission  of  waste,  when  it  is  shown 
that  he  is  insolvent,  and  has  threatened  to  cut  timber,  to 
the  material  injury  of  the  security .^^  So,  where  the  vendee 
takes  possession  of  the  premises  under  a  bond  for  title  and 
remains  in  possession  for  a  period  of  several  years,  receiving 
the  rents  and  profits,  but  the  premises  are  constantly  depre- 
ciating in  value  by  reason  of  bad  husbandry  upon  the  part 
of  the  vendee  who  is  insolvent  and  in  bankruptcy,  the  deprecia- 
tion in  value  being  such  as  to  render  the  premises  an  inade- 
quate security  for  the  purchase  money  still  due,  the  vendee 
may  be  enjoined  from  renting  or  using  the  land.^° 

§  658.  Right  of  purchaser  at  judicial  sale  or  of  attaching 
creditor  to  injunction.  The  authorities  are  somewhat  con- 
flicting as  to  the  right  of  a  purchaser  of  lands  at  a  judicial 
sale,  who  has  not  yet  received  a  conveyance  under  his  pur- 
chase, to  enjoin  the  commission  of  waste  upon  the  premises. 
Upon  the  one  hand,  it  is  held  that  such  a  purchaser,  whose 
only  evidence  of  title  is  a  certificate  of  sale,  has  no  such  in- 
terest or  title  as  to  enable  him  to  maintain  a  bill  for  an 
injunction    against    waste    before    obtaining    his    deed,    when 

37  Blackwood  r.  Van  Vleet,  11  so  McCaslin  r.  The  State,  44 
Mich.,  252.  Ind.,   151. 

38  Moses  Brothers  v.  Johnson,  88  ■*"  Tufts  v.  Little,  56  Ga.,  139. 
Ala.,  517,  7  So.,  146,  16  Am.  St.  See  also  Gunby  r.  Thompson,  56 
Rep.,  58.  Ga.,   316;     Chappell     r.     Boyd,    lb., 

578. 


632  INJUNCTIONS.  [CHAr.  XI, 

under  the  statute  regulating  such  sales  the  judgment  debtor 
is  allowed  to  retain  title  to  and  possession  of  the  premises 
until  the  statutory  period  for  redemption  has  expired. 
The  rights  of  such  a  purchaser,  it  is  held,  are  distinguish- 
able from  those  of  a  mortgagee,  who  may  restrain  waste, 
since  the  mortgagee  may  be  regarded  as  in  the  nature  of  a 
purchaser,  the  land  mortgaged  being  specially  appropriated 
to  the  payment  of  his  debt  and  the  waste  lessening  his  se- 
curity; but  the  purchaser  at  the  judicial  sale  is  only  a 
volunteer,  without  privity  with  the  owner,  and  equity  ac- 
cordingly leaves  both  to  their  legal  rights  and  remedies.**^ 
Upon  the  other  hand,  it  is  held  that  it  is  not  necessary  that 
complainant  seeking  to  restrain  the  commission  of  waste 
should  have  an  absolute  title  in  fee  to  the  premises,  but  that 
an  equitable  title  may  suffice  to  warrant  the  interposition 
of  equity.  It  is  accordingly  held,  in  conformity  with  this 
view  of  the  nature  of  the  title  required,  that  a  purchaser  at 
a  sherilf's  sale  may  be  allowed  an  injunction  against  the 
commission  of  waste  by  the  cutting  of  timber  to  the  seri- 
ous injury  of  the  premises,  even  before  the  sale  has  been 
confirmed  and  a  conveyance  executed  to  the  purchaser.'*- 
Indeed,  the  jurisdiction  has  been  extended  even  further,  and 
it  has  been  held  that  an  attaching  creditor  is  entitled  to  the 
relief  for  the  protection  of  the  estate  which  he  has  attached 
to  satisfy  his  debt,  the  jurisdiction  resting,  as  in  the  case  of 
mortgages,  upon  the  necessity  of  preventing  the  security 
from  being  diminished  or  impaired.^'^  So  where  the  sale  of 
lands  levied  upon  under  execution  has  been  staid  by  mili- 
tary   order,    and    waste    is   being    committed,    it    is    competent 


■*3  Law  i\  Wilgees,  5  Bissell,  1.  wise     insolvent,     complainant     at- 

■»- Thompson    v.   Lynam,     1     Del.  tached  his  real  estate  to  secure  an 

Ch.,  64.     See  also  Hughlett  v.  Har-  indebtedness    upon     a     promissory 

ris,  1  Del.  Ch.,  349.  note.     Williams,  Ch.  J.,  says:  "The 

•<^  Camp  V.   Bates,  11    Conn.,   51.  case  in  principle  seems  much  like 

In  this  case  defendant  being  other-  that  of  a  mortgage.     In  both  cases 


CHAP.  XI.] 


AGAINST    WASTE. 


633 


for  a  court  of  equity  to  interfere  for  the  prevention  of  tlie 
waste.  And  in  such  case  the  fact  that,  pending  the  pro- 
ceedings for  the  injunction,  the  military  order  ceases  to 
have  effect,  does  not  impair  the  jurisdiction  of  equity  by 
injunction-^-*  But  where  a  judgment  creditor  whose  judg- 
ment was  a  lien  upon  land  of  his  debtor  obtained  an  injunc- 
tion restraining  the  debtor  from  committing  waste,  and, 
pending  the  injunction,  purchased  the  premises  at  a  sheriff's 
sale  under  execution  upon  his  judgment,  he  was  denied  an 
accounting  in  the  same  suit  for  the  waste  committed  prior 
to  his  obtaining  title  to  the  land,  title  at  the  time  of  the 
commission  of  waste  being  regarded  as  necessary  to  sustain 
a  right  to  an  accounting  in  equity.^-'' 

§  659.  Changing  character  of  premises  by  tenant.  A  ten- 
ant for  lives  may  be  enjoined  from  changing  the  nature 
of  the  premises  demised,  as  by  converting  agricultural  land 
into    a    cemetery,    since     this     would     entirely     change    the 


the  land  is  appropriated  as  secur- 
ity for  the  debt.  In  both  cases  the 
creditor  has  the  right  to  take  the 
land,  or  resort  to  other  property 
if  it  can  be  found.  In  both  cases 
the  debtor  may  remove  the  lien  by 
payment  of  the  debt.  In  both  cases 
the  debtor  may  deny  or  disprove 
the  existence  of  the  debt.  Why, 
then,  should  not  a  court  of  chan- 
cery have  the  same  power  to  pre- 
vent waste  upon  this  property  in 
the  one  case  as  well  as  the  other? 
If  it  is  done  in  the  one  case,  tha'- 
the  security  given  by  the  party 
should  not  be  destroyed,  it  should 
be  done  in  the  other,  that  the  se- 
curity given  by  the  law  should 
not  be  destroyed.  Surely  the  law 
must  be  as  anxious  to  guard  its 
own  enactments  as  the  provisions 
of  the  parties  themselves."    Refer- 


ring to  the  objection  that  com- 
plainant was  not  entitled  to  the 
injunction  since  he  was  not  in  pos- 
session of  the  property,  the  court 
further  say:  "Here,  from  the  na- 
ture of  the  case,  no  actual  posses- 
sion of  the  property  could  be  ob- 
tained by  the  creditor.  But  the 
writ  of  attachment  gave  to  the 
creditor  the  statute  privilege,  and 
all  the  possession  that  the  nature 
of  the  case  admitted.  The  prop- 
erty is  left  in  the  possession  of 
the  debtor  just  as  in  the  case  of  a 
mortgage;  but  it  is,  in  view  of 
the  law,  in  the  custody  of  the  law 
itself;  and  being  so,  the  law  must 
protect  those  who  are  reposing 
upon  its  care." 

•1*  Webb   r.  Boyle,  63  N.  C,  271. 

*s  Hughlett  V.  Harris,  1  Del.  Ch., 
349. 


634  INJUNCTIONS.  [chap.  XI. 

character  of  the  property.**'  But  changing  the  demised 
premises,  which  have  long  been  rented  and  used  for  stores, 
into  dwellings  will  not  warrant  an  injunction  by  the  owner 
of  the  reversion  against  an  assignee  of  the  lessee,  when 
the  lease  is  for  a  period  of  nine  hundred  and  ninety- 
nine  years,  such  a  lease  being  regarded  as  a  perpetuity, 
and  the  improvements  or  changes  having  the  effect  of 
largely  increasing  the  existing  security  for  the  rents.  And 
the  party  aggrieved  in  such  case  will  be  left  to  pursue  his 
remedy  at  law.'*'^ 

§  660.  Improper  tillage ;  removal  of  manure ;  beneficial  acts 
by  defendant.  The  tillage  of  farming  lands  contrary  to  the 
established  rotation  of  crops,  and  contrary  to  the  established 
usage  of  that  part  of  the  country,  is  such  waste  as  may  be 
enjoined  in  equity,  the  tillage  being  contrary  to  good  hus- 
bandry and  depreciating  the  value  of  the  premises.*^  And 
the  lessor  of  real  estate  may  enjoin  his  lessee  from  remov- 
ing manure  from  the  demised  premises  which  has  been  made 
thereon  during  the  tenancy,  since  the  tenant  has  the  right 
only  to  use  the  manure  upon  the  farm,  and  no  right  to  re- 
move it  as  his  own  property.'*'*  Nor  will  equity  refrain  from 
the  exercise  of  its  jurisdiction  in  restraint  or  waste  merely 
because  defendant  has  done  acts  beneficial  to  the  property, 
or  because  of  his  assertion  that  he  will  improve  it  after 
committing  the  waste.^** 

§  661.  Retaining  injunction  pending  writ  of  error  at  law. 
When  a  temporary  injunction  is  allowed  against  the  com- 
mission of  waste,  the  court  directing  an  action  at  law 
to    be    brought,    and    defendant     obtains     judgment     in     the 

<«  Hunt   V.   Browne,    Sau.   &    Sc,  House  of  Lords,  1  L.  R.  Jr.  Ch.  D., 

178;    Cregan  v.  Cullen,  16   Ir.  Ch.,  249,  3   App.   Cas.  709. 

339.  4s  Wilds  /;.  Layton,    1    Del.  Ch., 

•17  Doherty    v.    Allman,     I.    R.    10  226. 

Eq..  460,   reversing  S.  C,  lb.,  362,  •»!>  Bonnel   v.  Allen.  53   Ind.,  130. 

and    affirmed    on    appeal     to    the  so  Coppinger   v.   Gubbins,     9     Ir. 

Eq..  304. 


CHAP.  XI. J  AGAINST    WASTE.  635 

action  at  law,  it  is  discretionary  with  the  court  of  equity  to 
dissolve  or  retain  the  injunction  during  the  pendency  of  a 
writ  of  error  to  the  judgment  at  law.  The  court  may, 
therefore,  in  such  a  case,  on  balancing  the  relative  danger 
and  inconvenience  to  the  parties  retain  the  injunction  until 
the  writ  of  error  is  determined,  when  such  course  seems  to 
be  necessary  for  the  prevention  of  irreparable   injury.^i 

§  662.  Injunction  pending  action  at  law.  Although  the 
jurisdiction  in  restraint  of  waste  was  originally  confined 
to  cases  where  the  relief  was  sought  pendente  lite,  it 
has  long  since  been  extended  to  cases  where  no  action 
at  law  is  pending.^2  The  jurisdiction  is,  however,  still 
exercised  in  some  instances  as  ancillary  to  or  in  aid  of  an 
action  at  law  concerning  real  property,  and  in  Wisconsin, 
under  the  legislation  and  code  procedure  there  prevail- 
ing, it  is  held  to  be  proper  in  an  action  for  the  recovery 
of  real  property  to  pray  for  a  temporary  or  provisional 
order  restraining  defendant  from  committing  waste  pendente 
lite?^  And  where  a  preliminary  injunction  restraining  waste 
is  sought  in  aid  of  a  pending  action  at  law,  the  plaintiff  is 
not  required  to  make  out  such  a  case  as  will  certainly  entitle 
him  to  a  perpetual  injunction  upon  final  hearing.^* 

§663.  Purchaser  under  decree  enjoined;  removal  of  min- 
eral deposits  by  tenant.  A  purchaser  of  real  estate  under 
a  decree,  who  has  not  paid  the  purchase  money,  may  be  en- 
joined from  committing  waste,  although  not  a  party  to  the 


61  Mountcashell   v.   O'Neill,   3    Ir.  law   and    prejudicial   to   the   inter- 

Ch.,  619,  reversing  S.  C,  lb.,  455.  ests    of    the     community,    or     the 

52  Denny  v.  Brunson,  29  Pa.  St.,  rights    of    individuals,"    the    court 

382.     And   in  this  case  it  is  held  may     enjoin     the     commission    of 

that  where  the    authority    of    the  waste. 

court  to   issue  injunctions    is    de-  "'S  Riemer  v.  Johnke,  37  Wis.,  258. 

rived  from  a  statute  extending  its  •'''•*  Buskirk  r.  King,  18  C.  C.  A., 

jurisdiction  to    the    prevention  or  418,  72  Fed.,  22. 
restraining    of     "acts    contrary    to 


636  iNJUNCTiOKS.  [chap.  XI, 

proceedings  in  which  the  decree  was  rendered.-'"'-'''  And  a  ten- 
ant of  a  farm  on  which  is  a  pool  fed  by  a  mountain  stream 
depositing  in  the  pool  mineral  substances  of  value,  may  be 
restrained  from  removing  or  disturbing  such  deposits,  com- 
plainant's right  to  the  mineral  substances  having  been 
established  by  a  verdict  at  law  in  an  action  against  the 
same  defendant.^^ 

§  664.  Removal  of  coal.  The  tenant  for  life  of  premises 
containing  coal  mines  which  he  has  leased  to  defendant  will 
not  be  allowed  to  join  with  the  remainder-man  in  a  bill  to 
restrain  defendant  from  taking  coal  from  the  mines,  although 
it  is  alleged  in  the  bill  that  the  lease  was  made  through  mis- 
take and  worked  a  forfeiture  of  the  life  estate,  the  relief 
being  withheld  on  the  principle  that  equity  will  not  permit  a 
lessor  to  disaffirm  his  own  lease.^'^ 

§  665.  Insolvency  of  surety  of  administrator.  In  accor- 
dance with  the  well  settled  doctrine  denying  relief  by 
injunction  in  all  cases  where  adequate  relief  may  be  had 
at  law,  it  is  held  that  an  injunction  will  not  lie  against 
a  temporary  administrator  to  prevent  the  commission 
of  waste,  upon  the  ground  of  the  insolvency  of  his  surety, 
when  the  law  affords  ample  remedy  by  compelling  the  giv- 
ing of  sufficient  security.^'^ 

§666.  When  quarrying-  enjoined;  mining  enjoined  pend- 
ing ejectment.  Where  quarrying  is  the  only  use  that  can  be 
made  of  the  premises,  it  will  not  be  deemed  waste  if  done  in 
a  proper  manner.  And  under  such  circumstances  the  injunc- 
tion will  not  be  continued  M^hen  the  answer  denies  that  the 
(juari-ying  impairs  the  value  of  the  premises.-'"''^  But  where 
defendant's   interest   in    a   (juarry   and   his   right  to   work   it 

■'■'•'■'  Casamajor  v.  Strode,  1  Sim.  &  •">"  Wentworth  r.  Turner,  3  Ves.,  4. 
Stu.,  381.  -'^  Montgomery     v.     Walker,     36 

in  Thomas  v.  Jones,  1  Y.  &  C.  C.     Ga.,  515. 
C,  510.  ■■'■*  Vervalen    r.    Older,    4     Halst. 

Ch.,  98. 


CHAP.  XI. J  AGAINST    WASTE.  637 

have  expired  with  the  expiration  of  his  lease,  he  will  be 
restrained  from  further  quarrying.""  And  the  taking  of 
stone  by  a  city  corporation  from  complainant's  hill,  abutting 
on  the  right  of  way  which  he  had  granted  to  the  city  for 
streets,  is  such  waste  as  equity  will  restrain-^*^  And  an 
injunction  has  been  granted,  upon  the  application  of  a  re- 
ceiver over  an  estate,  to  restrain  one  tenant  from  commit- 
ting waste  by  quarrying  in  a  private  road  pertaining  to  the 
premises  and  common  to  all  the  tenants."-  So,  pending  an 
action  of  ejectment,  defendants  have  been  enjoined  from 
excavating  and  removing  soil  in  mining  upon  the  premises, 
the  title  being  in  dispute,  plaintiff  claiming  title  thereto  as 
agricultural  land  and  defendant  claiming  title  as  mineral 
land."-* 

§  667.  Diligence  required,  especially  in  cases  of  mines. 
The  general  doctrine  of  equity  requiring  diligence  upon 
the  part  of  one  who  seeks  the  extraordinary  aid  of  an 
injunction  for  the  protection  of  his  rights  applies  with 
equal  force  in  cases  where  the  preventive  aid  of  the  court  is 
sought  against  the  commission  of  waste."^  But  while  dili- 
gence in  the  assertion  of  his  rights  is  indispensable  on  the 
part  of  one  who  seeks  the  aid  of  equity  for  the  prevention 
of  waste,  the  utmost  degree  of  promptitude  is  exacted 
in  cases  of  waste  in  mines,  owing  to  the  peculiar  nature 
of  the  property."'"'  And  Avhere  complainant,  who  seeks 
relief  against  the  commission  of  waste  in  the  use  of  mines 
on  premises  demised  by  him,  has  stood  by  for  many  years 

60  Ackerman  v.  Hartley,  4  Halst.  02  Dorman  v.  Dorman,  3  Ir.  Eq., 

Ch.,  476.  385. 

••■1  Smith  V.  City  of  Rome,  19  Ga.,  '■•'  Hunt  v.  Steese,  75  Cal.,  620,  17 

89.     But  in    this    case    the    court  Pac,  920. 

would   seem  to   have  gone   beyond  b^  Barry  ??.   Barry,   1   Jac.  &  W., 

the   authority    of   the   adjudicated  651. 

cases    in    saying   that    "an    injunc-  ""•Norway  v.  Rowe,  19  Ves.,  159; 

tlon  to  stay  waste  has  become  al-  Parrott  r.  Palmer,  3  Myl.  &  K.,  632. 
most  a  matter  of  course." 


638  INJUNCTIONS.  [chap.  XI, 

and  allowed  defendants  to  expend  large  sums  of  money 
in  developing  the  mines  without  objection,  he  will  not  be 
allowed  an  injunction.^^ 

§668.  Injunction  before  answer.  Equity  will  sometimes 
interfere  by  injunction  against  the  commission  of  waste 
before  answer.  And  even  under  the  former  practice  of  the 
English  Court  of  Chancery,  when  an  injunction  was  not 
usually  granted  before  answer,  the  court  would  in  cases  of 
waste,  upon  reasonable  evidence  of  damage  or  intended 
waste,  grant  an  injunction  before  answer  to  restrain  the 
commission  of  waste  by  a  servant  or  agent,  himself  having 
no  right  in  the  premises.^'^ 

§  669.  Accounting  an  incident  to  the  injunction.  It 
is  a  well  established  principle  of  equity  jurisprudence  that 
in  all  cases  where  a  bill  for  an  injunction  will  lie  to 
restrain  waste,  an  account  of  and  satisfaction  for  the  waste 
already  committed  will  be  allowed,  to  prevent  a  multiplic- 
ity of  suits  as  well  as  to  afford  complete  redress,  without 
compelling   a    resort   to   law.*^^      Where,    therefore,    a   proper 

66  Parrott   v.    Palmer,    3    Myl.   &  have  been  allowed   to  elapse  than 

K.,  632.    "If  there  be  anything  well  the  number  of  weeks  which  would 

established     in    this     court,"   says  have  closed  the  doors  against  the 

Lord  Brougham  in  this  case,  "it  is  plaintiff    coming     to     seek    an    in- 

that  a  man  who  lies  by,  while  he  junction." 

sees  another  person  expend  his  ^7  Lord  Orrery  v.  Newton,  Ca. 
capital  and  bestow  his  labor  upon  temp.  H.,  252.  But  Lord  Hard- 
any  work,  without  giving  to  that  wicke  denied  an  injunction  to  stay 
person  notice,  or  attempting  to  in-  waste  in  digging  coal,  before  an- 
terrupt  him — one  who  thus  acqui-  swer  iiled,  because  it  appeared 
esces  in  proceedings  inconsistent  that  defendant  set  up  a  right  of 
with  his  own  claims — when  he  inheritance  in  the  estate  and 
comes  to  enforce  those  claims  in  said  that  such  injunctions  were 
this  court,  shall  in  vain  seek  for  hever  granted  before  hearing,  un- 
its interposition  by  an  injunction,  less  defendant  had  only  a  term  in 
of  which  the  effect  would  be  to  the  estate  and  the  reversion  was 
render    all    the     expense     useless,  in  plaintiff. 

which    he    voluntarily    suffered    to  cs  Jesus  College  v.  Bloom,  3  Atk.. 

be     incurred.     Here     more     years  262;   S.  C,  Amb.,  54;   Ackerman  v. 

Hartley,  4  Halst.  Ch.,  476. 


CHAP.  XI.]  AGAINST    WASTE.  639 

case  is  presented  for  an  injunction,  an  account  of  the  waste 
already  committed  and  a  decree  for  damages  may  be  had 
in  the  injunction  suit.^^  Indeed,  this  would  seem  to  be  but 
the  exercise  of  the  ordinary  prerogative  of  equity,  that 
when  one  resorts  to  a  court  of  equity  for  one  purpose,  his 
case  will  be  retained  until  the  entire  matter  is  disposed  of, 
upon  the  principle  that  the  court  having  jurisdiction  of  the 
cause  for  one  purpose  will  retain  it  to  give  general  and 
complete  relief,  thereby  preventing  a  multiplicity  of  suits.'^^ 
And  an  account  for  waste  committed  is  considered  as  a  nec- 
essary incident  of  the  relief  against  future  waste.'^^  And  an 
injunction  being  refused,  as  a  general  rule  no  account  will 
be  allowed  for  waste  already  committed.'''^ 

§  670.  Accounting-  may  be  had  without  injunction.  If, 
however,  the  waste  is  of  such  a  nature  that  the  party 
aggrieved  is  remediless  at  law,  and  would  sustain  great 
injury  by  withholding  an  account,  it  will  be  granted,  even 
though  an  injunction  will  not  be  allowed.^^  And  in  the 
case  of  equitable  waste  committed  by  one  deceased,  an  ac- 
count will  be  allowed  against  his  assets  where  an  injunction 
would  not  be  appropriate.'''^  In  cases  of  mines  and  collieries 
the  account  may  be  allowed  regardless  of  whether  an  in- 
junction will  lie.'^^     And  a   tenant  in  common  of  a  mine  is 

69  Allison's  Appeal,  77  Pa.  St.,  Parrott  r.  Palmer,  3  Myl.  &  K.,  632. 
221;  Fleming  v.  Collins'  Adm'r,  2  74  Lansdowne  v.  Lansdowne,  1 
Del.  Ch.,  230.  Madd.,    116;    Morris    v.     Morris,   3 

70  Jesus     College     v.     Bloom,      3  DeG.  &  J.,  323. 

Atk.,  262;    Allison's  Appeal,  77  Pa.  ^^  Winchester    v.    Knight,     1     P, 

St.,      221;       Fleming     v.     Collins'  Wms.,    406;     Story   v.   Windsor,    2 

Adm'r,  2   Del.   Ch.,  230.  Atk.,  630;     Pulteney  v.   Warren,   6 

•?!  Ackerman  v.  Hartley,  4  Halst.  Ves.,    89.     And   in   Parrott  v.   Pal- 

Ch.,  476.  mer,     3     Myl.     &     K.,     632,     Lord 

~-  Crockett  v.  Crockett,  2  Ohio  Brougham,  after  reviewing  the 
St.,  180,  affirming  the  maxim,  "no  English  cases,  observes:  "From 
injunction,  no  account,"  announced  the  whole  it  may  be  collected  that 
by  Lord  Brougham  in  Parrott  v.  although,  as  to  timber,  there  ex- 
Palmer,  3  Myl.  &  K..  632.  ists    considerable   discrepancy,  yet 

"3  Garth  v.  Cotton,  3  Atk.,  751;  the  sound  rule  is  to  make  the  ac- 


640 


INJUNCTIONS. 


[chap.  XI. 


entitled  to  an  account  of  the  profits.'^^'  So,  too,  where  there 
are  joint  owners  of  land,  one  who  derives  profit  from  waste 
committed  thereon  will  be  required  to  account  to  the  other 
owner.'^'^  But  the  same  laches  which  will  debar  complainant 
from  relief  by  injunction  may  prevent  his  obtaining  an  ac- 
count, even  in  cases  of  mines.'^^ 

^  670  a.  Injunction  against  railway  until  compensation. 
Where  an  elevated  railroad  company  is  in  possession  of  a 
building  as  tenant  of  the  owner  and  is  proceeding  to  tear 
away  a  corner  of  the  building  for  the  purpose  of  constructing 
its  elevated  railroad,  such  an  act  amounts  to  waste  which 
will  be  enjoined  until  condemnation  proceedings  are  brought 
and  compensation  made  the  owner  for  the  appropriation  of 
his  property.'^'^ 

count    the    incident   and     not     the  ^^  Martyn  v.  Knowllys,  8  T.   R., 

principle,    where   there    is    a    rem-  145. 

edy  at  law;    but  that  mines  are  to  "«  Parrott  v.    Palmer,   3    Myl.   & 

he  otherwise  considered,  and  that,  K.,  632. 

as  to  them,  the  party  may  have  an  "»  Bass  v.  Metropolitan  W.  S.  El. 

account  even  in  cases  where  no  in-  Co.,  27  C.  C.  A.,  147,  82  Fed..  857. 

Junction  would  lie."  39  L.  R.  A.,  711. 
?«  Bently  v.  Bates,  4  Y.  &  C,  182. 


CHAP.  XI.]  AGAINST    WASTE.  641 

II.     Destruction  of  Timber. 

§  671.     When  equity  may  enjoin  the  cutting  and  removal  of  timber; 
accounting. 

672.  Preliminary   steps   sufficient   ground   for   interference. 

673.  Irreparable  injury  must  be  shown;  injunction  not  granted  as  to 

timber  already  cut. 

674.  Injunction  not  allowed  for  past  injuries,  nor  where  defendants 

claim  both  title  and  possession. 

675.  Illustrations  of  the  relief. 

676.  Tendency  to  a  more  liberal  use  of  the  writ;    but  not  allowed 

in  case  of  disputed  title. 

677.  Further  illustrations. 

678.  Lessee  of  shooting  privileges. 

679.  Cutting  of   timber   pending  ejectment. 

§  671.  When  equity  may  enjoin  the  cutting  and  removal  of 
timber;  accounting-.  The  most  frequent  class  of  cases  in 
which  the  aid  of  equity  is  invoked  for  restraining  waste  is 
in  the  cutting  and  removal  of  timber  from  estates  of  freehold. 
Pending  an  action  at  law  to  try  disputed  titles,  the  cutting 
and  removal  of  timber  will  be  enjoined  when  such  timber 
constitutes  the  chief  value  of  the  land,  and  when  it  is 
shown  that  defendant  would  be  unable  to  respond  in  dam- 
ages.^ And  the  relief  is  properly  granted  although  no  show- 
ing of  the  insolvency  of  the  defendant  is  made.^  So  where 
complainant  avers  title  in  himself  and  has  brought  an 
action  of  forcible  entry,  defendant  being  in  possession  of 
the  premises,  an  injunction  may  be  allowed  to  prevent  de- 
fendant from  cutting  timber.^  And  where  both  parties 
claim  title,  the  cutting  of  timber  has  been  restrained  on  the 
principle  of  bills  quia  timet^  Nor  is  it  necessary  that  there 
should  be  an  actual  lis  pendens  in  a  court  of  law,  and  equity 
may,  in  its  discretion,  enjoin  the  cutting  down  and  removal 
of  large   quantities   of  timber,   where  no  action  is  pending.^ 

1  Kinsler  v.  Clarke,  2  Hill  Ch.,  3  Hicks  v.  Michael,  15  Cal.,  107. 
617.  *  Peak  v.  Hayden,  3  Bush,  125. 

2  Buskirk  v.  King,  18  C.  C.  A.,  s  Kane  v.  Vanderburg,  1  Johns. 
418,  72  Fed.,  22.  Ch.,  11.     Kent,  Chancellor,  in  de- 

41 


642  INJUNCTIONS.  [CIIAP.  XI. 

So  the  cutting  and  removal  of  valuable  timber  by  the  owner 
of  a  life  estate  in  possession,  with  threats  of  continuing 
such  acts  in  the  future,  to  the  irreparable  injury  of  the  es- 
tate, constitute  sufficient  ground  for  an  injunction  for  the 
protection  of  the  owner  of  the  fee.*'  And  plaintiffs  who 
have  been  in  possession  of  land  under  claim  of  legal  title 
for  many  years  may  enjoin  defendants,  who  are  insolvent, 
from  cutting  timber  which  constitutes  the  chief  value  of  the 
premises,  even  though  defendants  claim  title.'^  So  the  cut- 
ting of  valuable  timber  which  constitutes  the  chief  value 
of  plaintiff's  premises  presents  a  case  of  such  irreparable 
injury  as  to  warrant  relief  by  injunction.^  And  equity  re- 
garding the  cutting  of  timber  as  an  injury  of  an  irreparable 
nature,  and  having  taken  jurisdiction  for  the  purpose  of 
restraining  such  waste,  will  do  complete  justice  by  decree- 
ing an  account  and  satisfaction  for  the  waste  already  com- 
mitted, when  plaintiff  has  the  absolute  title  to  the  premises.^ 
§  672.  Preliminaxy  steps  sufficient  ground  for  interfer- 
ence.     Although   defendant   denies   any   intention   of   cutting 

livering  the  opinion,  says:  "Chan-  of  the  six  months'  notice."  In  this 
eery  goes  greater  lengths  than  the  case  the  bill  stated  that  notices  to 
courts  of  law  in  staying  waste.  It  quit  had  already  been  served  on 
is  a  wholesome  jurisdiction,  to  be  defendants  and  that  ejectment 
liberally  exercised  in  the  preven-  would  be  brought.  The  court  held 
tion  of  irreparable  injury,  and  de-  the  notice  equivalent  to  the  com- 
pends  on  much  latitude  of  discre-  mencement  of  an  adverse  proceed- 
tion  in  the  court.  The  tenant  for  ing  to  try  the  title  at  law  and 
life  is  here  suffering  injury  to  his  sufficient  to  bring  the  case  within 
own  interest,  and  he,  by  his  ten-  the  spirit  of  the  ruling  in  Lath- 
ants,  is  doing  great  injury  to  the  rop  v.  Marsh,  5  Ves.,  259. 
inheritance,  which  it  is  his  duty  to  ^  Robertson  v.  Meadors,  73  Ind., 
prevent.  He  is  bound  to  stop  the  43;  Disher  v.  Disher,  45  Neb.,  100, 
mischief,  or  be  responsible  himself.  63  N.  W.,  368. 

To  suppose  that  an  ejectment  must  ^  Piper  v.  Piper,  38  N.  J.  Eq.,  81. 

be  actually  commenced  before  the  ^  Butman    v    James,     34     Minn., 

injunction  can  issue  is  certainly  an  547,  27  N.  W.,  66. 

error.     This   would   be   placing  the  » Fleming    v.    Collins,    Adm'r,    2 

operation     of     waste     beyond    the  Del.  Ch.,  230. 
reach  of  control  during  the  period 


CHAP.  XI.]  AGAINST    WASTE.  643 

timber  upon  the  premises  concerning  which  an  injunction 
is  sought,  yet  if  he  admits  having  taken  preliminary  steps 
for  that  purpose,  such  as  sending  a  surveyor  to  mark  the 
trees  preparatory  to  cutting  them,  an  injunction  will  be  al- 
lowed, since  it  is  not  necessary  that  waste  should  have  been 
actually  committed  to  warrant  a  court  of  equity  in  inter- 
fering.i*^  Nor  is  the  owner  estopped  from  relief  because  he 
has  acquiesced  in  the  occasional  cutting  of  timber  by  de- 
fendant prior  to  seeking  an  injunction.!^ 

§673.  Irreparable  injury  must  be  shown;  injunction  not 
granted  as  to  timber  already  cut.  Where  an  injunction  is 
sought  against  the  cutting  of  timber,  it  must  appear  that 
the  trees  have  a  peculiar  value,  or  are  of  great  importance 
to  the  estate,  as  fruit  or  ornamental  trees,  and  in  the  case 
of  timber  it  must  appear  that  its  destruction  would  result 
in  irreparable  loss  to  the  estate.^^  The  proper  thinning  out 
of  trees  so  as  to  enhance  the  value  of  the  remaining  timber 
does  not  constitute  waste.^^  So  the  cutting  by  a  tenant  of 
young  trees  or  saplings,  which  have  not  attained  such  a 
growth  as  to  be  ranked  as  timber,  does  not  constitute  such 
waste  as  to  warrant  an  injunction  when  the  trees  are  not 
planted  for  ornament  or  shelter.^*  And  an  injunction  will 
not  be  allowed  against  the  removal  of  timber  already  cut  on 
the  premises,  since  it  has  ceased  to  be  a  part  of  the  realty, 
but  is  personal  property,  for  which  trover  will  lie.^^  Nor  will 
defendant  who  is  in  possession  of  land  under  a  contract  of 
purchase  be  restrained  from  cutting  timber,  unless  it  should 
be  continued  to  such  an  extent  as  to  render  the  land  insuffi- 
cient security  for  the  payment  of  the  purchase  money.^*^     So 

^0  Jackson  v.  Cator,  5  Ves.,  688.  i*  Dunn   v.    Bryan,   I.    R.    7    Eq., 

11  Davis  V.  Hull,  67  Iowa,  479,  25  143. 

N.  W.,  740.  15  Van  Wyck  v.  Alliger,  6  Barb., 

i->  Green  v.  Keen,  4  Md.,  98.  507;     Watson  v.   Hunter,   5   Johns. 

13  Cowley   V.   Wellesley,   1   L.    R.  Ch.,  169. 

Eq.,   656.  16  Van  Wyck  v.  Alliger,  6  Barb., 

507;    Core  v.  Bell,  20  West  Va.,  169.' 


644 


INJUN-CTIONS. 


[chap.  XI. 


the  cutting  and  removal  of  trees  will  not  be  enjoined  when 
it  is  not  shown  that  defendants  are  insolvent,  or  that  the 
injury  will  be  irreparable,  and  when  it  does  not  appear 
that  plaintiff  can  not  obtain  full  redress  in  an  action  for 
damages.^ '^  But  the  cutting  of  timber  upon  plaintiff's  prem- 
ises which  is  necessary  for  farming  purposes  and  the  destruc- 
tion of  shade  trees  constitute  such  waste  as  to  warrant  relief 
by  injunetion.is 

§  674.  Injunction  not  allowed  for  past  injuries,  nor  where 
defendants  claim  both  title  and  possession.  The  province  of 
an  injunction  being  preventive  rather  than  remedial,  it  will 
not  be  used  to  restrain  past  injuries,  and  where  it  does  not 
appear  that  future  waste  is  threatened  the  relief  will  be  with- 
held.i^     And  where  defendants   claim  both  title  and  posses- 


17  Dunkart  v.  Rinehart,  87  N.  C, 
224. 

18  Powell  V.  Cheshire,  70  Ga..  357. 

19  Southard  v.  Morris  C.  &  B.  Co  , 
Saxt.,  518;.  Watson  v.  Hunter,  5 
Johns.  Ch.,  169.  Watson  v.  Hunter 
was  a  bill  filed  by  the  owner  of 
the  fee  against  a  tenant  for  years 
to  restrain  the  cutting  of  pine 
timber  on  the  premises  leased,  and 
to  restrain  the  removal  of  that 
already  cut.  Kent,  Chancellor, 
after  reviewing  the  English  au- 
thorities, says:  "This  court  will 
stay  the  commission  of  waste,  or 
the  transfer  of  negotiable  paper, 
in  certain  cases,  in  order  to  pre- 
vent irreparable  mischief;  but  the 
only  mischief  that  can  arise  in 
the  present  case,  as  to  the  timber 
already  cut  and  drawn  to  the  mills 
of  the  defendants,  is  the  possible 
inability  of  the  party  to  respond 
in  damages.  That  is  a  danger 
equally  applicable  to  all  other  or- 
dinary demands,  and  it  is  not  an 
impending    and    special    mischief, 


which  will  justify  this  extraordi- 
nary preventive  remedy  by  injunc- 
tion. If  the  injunction  could  be 
ordinarily  applied  to  waste  already 
committed,  I  apprehend  we  should 
very  rarely  hear  of  a  special  ac- 
tion on  the  case,  in  the  nature  of 
waste,  in  the  courts  of  common 
law.     *     *  Where  the  mischief 

would  be  irreparable  it  might  be 
necessary  to  interfere  in  this  ex- 
traordinary way,  and  prevent  the 
removal  of  the  timber.  I  do  not 
mean  to  be  understood  to  say  that 
the  court  will  never  interfere,  but 
that  it  ought  not  to  be  done  in  or- 
dinary cases  like  the  present.  1 
shall  accordingly  confine  the  in- 
junction to  the  timber  standing  or 
growing  at  the  time  of  the  service 
of  process."  See  also  Smith  r. 
Cooke,  3  Atk.,  381;  Lee  v.  Alston. 
1  Ves.  Jr.,  78;  Garth  v.  Cotton,  1 
Ves.,  528;  Bishop  of  London  v. 
Web,  1  P.  Wms.,  526;  Packing- 
ton  V.  Packington,  3  Atk.,  215. 


CHAP.  XI.]  AGAIXST    WASTE.  645 

sion,  equity  will  not  restrain  the  cutting  of  timber,  even 
though  it  constitutes  the  chief  value  of  the  premises.^*^  More 
especially  is  this  the  case  where  defendants'  title  has  been 
recognized  by  complainants.-^  And  where  the  answer  fully 
denies  that  the  cutting  of  the  timber  would  be  an  act  of  ir- 
reparable injury,  and  denies  the  inability  of  defendants  to 
respond  in  pecuniary  damages,  the  injunction  will  be  dis- 
solved.-- 

§  675.  Illustrations  of  the  relief.  Equity  will  not  stay 
waste  at  the  suit  of  one  who  has  failed  to  recover  damages 
at  law  after  several  suits  against  the  parties  for  trespass 
in  cutting  timber  on  his  land.^^  And  it  would  seem  that  the 
cutting  of  such  timber  as  is  necessary  for  repairs  and  the 
cultivation  of  the  land  will  not  be  enjoined.^^  But  a  tenant 
for  ninety-nine  years,  with  the  privilege  of  renewal  forever, 
and  with  leave  to  purchase  the  reversion  at  a  stipulated  price., 
will  be  restrained  from  cutting  young  timber  which  consti- 
tutes the  chief  value  of  the  land.-^  And  a  tenant  under  a 
lease  for  lives,  with  a  covenant  for  renewal  forever,  may 
nevertheless  be  enjoined  from  committing  waste  upon  the  de- 
mised premises  by  cutting  trees.-^  On  proof,  however,  of 
complainant's  want  of  title,  the  injunction  will  be  dissolved,, 
notwithstanding  the  pendency  of  his  action  at  law  for  the- 
trespass  in  cutting  timber.-^ 

20  Shreve  v.  Black,  3  Green  Ch.,  is  any  dispute,  from  being  enjoyed 
177.  by  their  owners." 

21  Shreve  v.  Black,  3  Green  Ch.,         2:i  Kerlin  v.  West,  3  Green    Ch., 
177.   Pennington,  Chancellor,  says:  449. 

"My    embarrassment     is     not    so  23  West  v.  Page,  1  Stockt.,  119. 

much  about  the  title  as  about  the  24  Duvall    v.    Waters,    1     Bland,, 

possession.     When  this  is  claimed  569. 

by  the   defendant,  as  well  as  the  25  Thruston   t\   Mustin,  3  Cranch 

title,  and  that,  too,  in  connection  C.  C,  335. 

with  the  title,  what  right  has  the  20  Hunt    v.    Browne,    Sau.    &    Sc_ 

court     to     interfere?      To     enjoin  178;    Coppinger   v.    Gubbins,    9    Ir- 

both   parties   until    a   trial   is   had  Eq.,  304,  criticising  Calvert  v.  Ga- 

must  result  in  tying  up  all  unim-  son,  2  Sch.  &  Lef.,  561. 

proved    lands,   about    which    there  "'  Westcott   v.    Gifford,    1    Halst. 

Ch.,  24. 


646  INJUNCTIONS.  [chap.  xr. 

§  676.  Tendency  to  a  more  liberal  use  of  the  writ;  but  not 
allowed  in  case  of  disputed  title.  Although  the  tendency  of 
courts  of  equity  is  to  a  more  liberal  use  of  the  writ  of  in- 
junction in  restraint  of  waste  than  was  formerly  allowed, 
still  a  strong  case  of  destruction  or  irreparable  mischief  must 
be  made  out  to  warrant  the  relief.  And  the  cutting  of  tim- 
ber upon  pine  lands,  valuable  chiefly  for  the  wood,  is  not 
such  a  case  of  irreparable  mischief  as  to  warrant  the  in- 
junction, where  defendant  sets  up  an  adverse  claim  to  a 
part  of  the  land,  and  the  title  and  real  ownership  are  in 
doubt.28  But  the  cutting  of  timber  upon  pine  timber  lands 
to  the  prejudice  of  the  inheritance  constitutes  such  waste  as 
to  warrant  relief  in  equity  by  injunction.-^  And  the  cutting 
of  fruit  trees  growing  in  a  garden  or  orchard  is  held  to  be 
waste  and  destructive  of  the  inheritance  and  to  afford  suf- 
ficient ground  for  an  injunction.^o 

§  677.  Further  illustrations.  A  devisee  under  a  will  has 
been  restrained  from  cutting  timber  pending  an  appeal  from 
a  decree  determining  his  rights  as  such  devisee.^^  So  an  in- 
junction has  been  granted  in  aid  of  an  action  of  ejectment, 
in  behalf  of  plaintiffs  therein,  to  restrain  defendants  from 
waste  consisting  in  the  destruction  of  timber  upon  the  prem- 
ises.^2  ^n(j  a  lessee  who  has  covenanted  to  plant  the  de- 
mised premises  with  trees,  and  to  replant  such  parts  as  have 
been  injured,  keeping  the  trees  enclosed  with  proper  fences, 
and  to  preserve  the  trees  growing  upon  the  premises  from 
waste  and  damage,  may  be  enjoined  from  cutting  the  trees 
and  from  injury  and  removing  the  fences,  as  well  as  from 
permitting   cattle   to   pasture    within   the    enclosure.^^      go    a 

^HWest  V.  Walker,  2  Green  Ch.,  129;    Silva  v.  Garcia,  65  Cal.,  591. 

279,  and  notes.     And  see  Cornelius  4  Pac,  628. 

V.  Post,  1  Stockt.,  196.  •■'!  Wright  /•.  Atkyns,  1  Ves.  &  B., 

2!»  Smith  &  Fleek's  Appeal,  69  Pa.  313. 

St.,  474.     See  also  Sheridan  v.  Mc-  •'<-  Neale   v.   Cripps,    4   Kay  &   J.. 

Mullen,  12  Ore.,  150,  6  Pac,  497.  472. 

30  Littler  V.  Thompson,  2  Beav.,  •^a  Bernard  v.  Meara,  12   Ir.  Ch., 

389. 


CHAP.  XI.]  AGAINST    WASTE.  647 

judgment  creditor  has  been  allowed  to  enjoin  his  debtor  from 
cutting  and  removing  timber  from  his  land  for  gain,  although 
the  land  was  exempt  from  sale  under  execution  as  a  home- 
stead.3* 

§  678.  Lessee  of  shooting  privileges.  When  a  land  owner 
has  demised  for  a  term  of  years  the  exclusive  privilege  of 
shooting  over  his  lands,  the  lessee  of  such  privilege  is  not 
entitled  to  the  aid  of  equity  to  enjoin  the  owner  of  the 
premises  from  cutting  timber  in  the  usual  course  of  manag- 
ing the  property.^^ 

§  679.  Cutting  of  timber  pending  ejectment.  In  ejectment 
for  the  recovery  of  lands  which  are  chiefly  valuable  for 
their  timber,  when  plaintiff  before  establishing  his  right  ob- 
tains an  injunction  restraining  defendants  from  the  commis- 
sion of  waste,  and  then  immediately  proceeds  to  cut  timber 
upon  the  premises  for  the  purpose  of  removing  it,  such  action 
is  regarded  as  a  violation  of  the  spirit  of  the  injunction  and 
as  a  gross  abuse  of  the  process  of  the  court  which  would 
justify  the  dissolution  of  the  injunction  should  the  applica- 
tion be  made.^^ 

34  Jones  V.  Britton,  102  N.  C,  166.        35  Gearns  v.  Baker,  L.  R.  10  Ch.. 
9  S.  E.,  556.  355. 

36  Haight  V.  Lucia,  36  Wis.,  356. 


648  INJUNCTIONS.  [chap.  Xi. 


III.     Equitable  Waste. 

§  680.     Definition  of  equitable  waste. 

681.  Ornamental   timber;    intention   of   devisor  to  govern. 

682.  Nice    distinctions    as    to    ornamental    timber;    question   one   of 

fact. 

683.  Destruction  of  young  timber  constitutes  equitable  waste. 

684.  Injunction  not  granted  where  legal  relief  is  the  main  object  of 

the  action. 

685.  Trpst  and  contingent  estates. 

§  680.  Definition  of  equitable  waste.  Equitable  waste  is  de- 
fined to  consist  of  such  acts  as  are  not  considered  waste  at 
law,  being  consistent  with  the  legal  rights  of  the  party  com- 
mitting them,  but  which  are  deemed  waste  in  equity  on  ac- 
count of  their  manifest  injury  to  the  inheritance.^  In  other 
words,  it  is  an  unconscientious  or  unreasonable  exercise  of  a 
legal  right,  for  which  the  law  provides  no  remedy,  and  it  may 
exist  independent  of  any  malicious  intention.^  The  remedy 
by  injunction,  being  to  prevent  a  known  and  certain  injury, 
is  applicable  to  every  species  of  waste.^  And  if  the  tenant 
for  life  commits  waste  maliciously,  he  will  be  enjoined  even 
though  he  had  the  power  to  do  the  acts  complained  of.'*  So 
if  the  tenant  for  life,  even  where  the  lease  contains  a  clause 
without  impeachment  of  waste,  wantonly*  and  maliciously  in- 
jures or  destroys  buildings  or  trees,  he  will  be  restrained,  al- 
though the  remainder-man  is  absolutely  remediless  at  law.^ 
And  the  fact  that  the  power  is  being  exercised  in  an  un- 
reasonable manner  and  against  conscience  is  sufficient  to  war- 
rant the  interference.*'     So,  too,  the  assignee  of  the  tenant  for 

1  2  Story's  Eq..  §  915.  S.    C,   2    Vern.,    738;     Clement   v. 

2  Turner  v.  Wright,  2  DeG.,  F.  Wheeler,  25  N.  H.,  360;  Packing- 
&  J.,  234.  245.  ton   v.    Packington,     3    Atk.,     215; 

"  Hawley  v.  Clowes,  2  Johns.  Ch.,  Strathmore  v.  Bowes,  2  Bro.  C.  C, 
122.  88;    Pentland   v.   Somerville,    2   Ir. 

4  Abraham    v.    Bubb,     2     Freem.     Ch.,  289. 

Chy.,  53.  "Aston    v.    Aston,   1    Ves.,     264; 

5  Vane  v.  Barnard,  1   Salk.,  IGl;     Marker  v.  Marker,  9  Hare,  1. 


CHAP.  XI.]  AGAINST    WASTE.  649 

life  without  impeachment  of  waste,  will  be  restrained.'''  And  a 
lessee  for  years,  even  though  under  a  lease  without  impeach- 
ment of  waste,  may  be  enjoined  at  the  suit  of  the  reversioner 
having  the  fee  from  digging  soil  for  the  manufacture  of  brick 
to  the  ruin  of  the  inheritance.'* 

§681.  Ornamental  timber;  intention  of  devisor  to  govern. 
The  cutting  of  timber  planted  for  ornament  of  the  premises 
seems  to  come  within  the  definition  of  equitable  waste  above 
given,^  and  a  tenant  in  tail,  after  possibility  of  issue  extinct, 
will  be  restrained  from  such  acts  of  waste.^*^  So  the  cutting 
or  felling  of  trees  that  are  for  the  ornament  or  shelter  of 
the  messuage  may  be  enjoined  upon  the  ground  of  equitable 
waste.^^  The  presumed  intention  of  the  devisor  governs  in 
determining  what  trees  are  to  be  deemed  ornamental,  and  when 
this  is  ascertained  the  court  will  extend  its  protection, 
whether  it  regards  the  trees  as  ornamental  or  the  contrary.^ - 
Trees  which  have  been  planted  or  left  standing  for  purposes 
of  protection,  as  well  as  those  meant  to  exclude  objects  from 
view,  are  regarded  as  coming  within  the  rule  and  will  be  pro- 
tected.^^ But  the  interference  is  confined  to  trees  of  an  orna- 
mental nature  only,  and  it  will  not  be  extended  to  those 
which  are  planted  for  profit.^  ^  And  the  tenant  may  thin  out 
ornamental   trees   without   being   liable    as   for   waste. ^^ 

§  682.     Nice  distinctions  as  to  ornamental  timber ;  question 
one  of  fact.     Nice  distinctions  have  sometimes  been  drawn  as 

"  Clement  v.  Wheeler,   25  N.  H.,  110,   note;     Downshire   v.    Sandys, 

361.  lb.,   107;     Mahon    v.     Stanhope,    ;^ 

8  Bishop  of  London  r.  Web,  1  P.  Madd.,   523;     Marker  v.  Marker,   9 

Wms.,  527.  Hare,  1. 

!>  Downshire    v.    Sandys,    6    Ves.,  i3  Aston   v.    Aston,    1   Ves.,    265; 

107;     Wombwell   v.   Bellasyse,    lb.,  Tamworth  r.  Ferrers,  6  Ves.,  419; 

110,  note;  Burges  v.  Lamb,  16  Ves.,  Downshire  r.  Sandys,  lb.,  107;  Day 

185.  V.  Merry,  16  Ves.,  375. 

10  Burges  r.  Lamb,  16  Ves.,  185;  i^  Halliwell  v.  Philipps,  4  Jur.  N. 
Day  V.  Merry,  16  Ves.,  375.  S.,  608. 

11  Lawley   r.   Lawley,   cited   in  a         is r.  Copley,  3  Madd.,  525, 

note  to  CofRn  v.  CofRn,  Jac,  71.  note. 

12  Wombwell  v.  Bellasyse,  6  Ves., 


650  INJUNCTIONS.  [chap,  XI. 

to  what  constitutes  ornamental  timber,  the  destruction  of 
which  will  be  enjoined.  Thus,  it  has  been  held  that  the  writ 
should  extend  only  to  timber  "standing  for  ornament  and 
shelter,"  and  not  to  timber  "contributing  to  ornament. "^^ 
And  in  interfering  for  the  protection  of  ornamental  timber 
equity  will  confine  the  relief  to  such  timber  as  has  been 
planted  or  left  standing  for  ornament,  the  question  in  all 
such  cases  being  purely  one  of  fact,  to  be  determined  in  ac- 
cordance with  the  presumed  will  and  intention  of  the  person 
by  whom  the  power  was  created,  and  not  according  to  the 
opinions  of  the  court.^*^ 

§  683,  Destruction  of  yo\mg  timber  constitutes  equitable 
waste.  The  destruction  of  young  trees  unfit  for  timber  is 
regarded  as  equitable  waste.  But  the  cutting  must  be  shown 
to  be  destructive  to  the  estate,  and  the  fact  that  the  tenant 
for  life,  without  impeachment  of  waste,  is  cutting  younger 
trees  than  a  careful  and  prudent  husbandman  would  do,  will 
not  authorize  the  interference.^^  But  the  cutting  of  saplings 
at  unseasonable  times  is  such  malicious  destruction  as  equity 
will  enjoin.^'*  So,  too,  the  relief  has  been  extended  to  the 
cutting  of  underwood  where  it  is  destructive  of  the  estate.-*^ 

§  684,  Injunction  not  granted  where  legal  relief  is  the 
main  object  of  the  action.  We  have  already  seen  that  equity 
will  restrain  the  commission  of  waste  by  the  tenant  where 
the  rights  of  the  party  aggrieved  are  merelj^  equitable  rights, 
and  where  no  action  at  law  could  be  maintained  against  the 
tenant.2^  But  where  complainant  has  only  an  equitable  and 
not  a  legal  interest  in  the  land,  and  his  action  is  brought  to 
recover  the  land  itself  and  damages  for  waste  committed,  an 

1"  Williams  v.  McNamara,  8  Ves.,  lo  Hole  v.  Thomas,  7  Ves.,  589. 

70.  20  Hole  V.   Thomas,   7   Ves.,  589; 

IT  Marker  v.  Marker,  9  Hare,  1,  Brydges  v.   Stevens,  6   Madd.,   279, 

"*  Aston    V.    Aston,    1    Ves.,    265;  -i  See  §  680,  ante;  Perrot  v.  Per- 

Peirs  V.  Peirs,  lb.,  521;   Taniworth  rot,  3  Atk.,  94;  Robinson  v.  Litton, 

t'.   Ferrers,    6   Ves.,    419;     Hole    v.  lb.,  210;  Farrant  r.  Lovel,  lb.,  723; 

Thomas,  7  Ves..  589,  Garth  v.  Cotton,  1  Ves.,  556. 


CHAP.  XI.]  AGAINST    WASTE.  651 

injunction  will  not  be  granted,  since  the  object  of  his  action 
is  to  secure  legal  and  not  equitable  relief.^- 

§  685.  Trust  and  contingent  estates.  It  is  said  that  the 
jurisdiction  will  be  more  readily  exercised  in  the  case  of  a 
trust  estate.2^  So  equity  will  interfere  to  prevent  waste  to 
the  injury  of  a  contingent  estate,  or  an  executory  devise,  de- 
pending upon  a  legal  estate.^^  And  an  heir,  who  takes  by 
resulting  trust,  is  within  the  principle  of  equitable  waste  un- 
til the  happening  of  the  contingency.^'^  But  as  between  ten- 
ants in  common,  an  injunction  will  not  be  granted  on  grounds 
of  purely  equitable  waste,  although  the  malicious  destruction 
of  trees  may  warrant  the  interference  between  such  tenants.-*^ 

22  Gillett  V.  Treganza,    13   Wis.,        23  Robinson    v.    Litton,    3     Atk., 

472.     But  it  would    seem    that    if  210;     Stansfleld  v.  Habergtiam,  10 

the  proceeding  were  addressed  by  Ves.,  277. 

the  equitable  owner  to  the  equity        2*  Story's  Eq.,  §  914;  Stansfleld  v. 

powers  of  the  court,  asking  its  aid  Habergham,  10  Ves.,  277. 
to   stay   waste,   or   injuries    affect-        2r,  stansfleld    v.    Habergham,    10 

ing    the    freehold,     it     might    be  Ves.,  277. 

granted   by  virtue  of  the  general        26  Hole  v.  Thomas,  7  Ves.,  589. 
powers  of  a  court  of  equity.    Id. 


652  iNJU]siCTiONS.  [chap.  XI. 

IV.    Parties. 

§  686.     General  rule  as  to  parties. 

687.  Rights  of  reversioner  or  remainder-man  against  tenant  for  life 

or  years;   waste  by  owner  of  base  fee;   mere  expectancy  of 
inheriting   insufficient. 

688.  Waste   by  heir   at   law   disputing  will. 

689.  Devisee  for  life;   removal  of  building  by  tenant;   waste  by  un- 

der-lessee. 

690.  Further   illustrations. 

691.  Changing  of  premises;   violation  of  covenants. 

692.  Joint  tenants  and  tenants  in   common. 

693.  "Waste  by  mortgagor  in  possession. 

694.  The  same. 

695.  Chattel   mortgages. 

696.  Plaintiff   who    has   parted   with   interest   denied   relief. 

§  686.  General  rule  as  to  parties.  While  there  are  many  cases 
where  parties  committing  waste  may  be  restrained  by  injunc- 
tion, even  though  dispunishable  at  law/  yet  as  a  general  rule 
he  only  who  has  the  remainder  or  reversion  of  the  inheritance 
is  entitled  to  the  relief,  and  the  jurisdiction  will  not  be  ex- 
ercised in  behalf  of  one  whose  only  evidence  of  title  consists 
in  the  unsupported  allegations  of  his  bill.-  But  a  single,  clear 
instance  of  waste  on  the  part  of  a  tenant  for  life  is  suf- 
ficient to  sustain  and  continue  an  injunction,  especially  if 
it  be  shown  to  have  been  intentional  and  not  the  result  of 
accident.^  And  a  tenant  for  life  will  be  restrained  at  the 
suit  of  the  remainder-man  for  killing  timber  preparatory  to 
cultivating  the  soil,   and   from   cutting  wood   for  sale.^ 

§  687.  Rights  of  reversioner  or  remainder-man  against  ten- 
ant for  life  or  years;  waste  by  owner  of  base  fee;  mere  ex- 
pectancy of  inheriting  insufficient.     The  jurisdiction  of  equity 

1  2  story's  Eq.,  §  913.  Perhaps   the   earliest    instance    of 

■•;  Loudon     r.     Warfield,    5    .T.    .J.  enjoining   a   tenant    for   life   from 

Marsh.,  196.  the   commission   of   waste   is   that 

3  Sarles  v.  Sarles,   3  Sandf.   Ch.,  mentioned    in   Horner   v.   Popham, 

601.  Colles,   1. 

*  Dickinson  r.   .Jones,  36  Ga.,  97. 


CHAr.  XI.]  AGAINST    WASTE.  653 

to  stay  the  commission  of  waste,  at  the  suit  of  the  owner  of 
the  reversion  against  the  tenant  for  life  or  years,  is  well  es- 
tablished and  rests  upon  the  inadequacy  of  the  remedy  at 
law.  And  under  this  head  of  its  jurisdiction  equity  may 
properly  enjoin  the  removal  of  machinery  and  fixtures  by 
defendants  who  are  tenants  of  certain  premises  used  for  mill 
purposes,  upon  a  bill  by  the  owner  of  the  premises,  such  acts 
being  deemed  sufficient  to  set  the  court  in  motion,  even  with- 
out an  averment  of  defendant's  insolvency.^  And  a  tenant 
for  life,  even  without  impeachment  of  waste,  may  be  enjoined 
by  the  remainder-man  from  committing  destructive  waste, 
such  as  pulling  down  the  mansion  house,  since  the  clause 
"without  impeachment  of  waste"  is  not  extended  to  allow 
the  destruction  of  the  estate  itself,  but  only  to  excuse  from 
permissive  waste.*^  So  a  contingent  remainder-man,  whose 
estate  is  not  yet  vested  by  the  happening  of  the  event,  may 
restrain  the  tenant  for  life  in  possession  from  committing 
waste  to  the  injury  of  the  estate.'''  The  doctrine  has  been 
broadly  asserted  that  an  executory  devisee  can  not  enjoin  the 
commission  of  waste  by  the  owner  of  a  base  or  qualified 
fee.^  The  rule  as  thus  announced  has  been  followed,  with 
the  qualification,  however,  that  the  relief  may  be  granted  in 
the  proper  case  where  it  appears  that  the  contingency  which 
will  determine  the  fee  is  reasonably  certain  to  happen  and 
the  waste  is  of  such  a  character  that  the  defendant  must  be 
deemed  guilty  of  an  abuse  of  his  rights.^  But  the  tenant  for 
life  will  not  be  restrained  from  the  removal  of  personal  prop- 
erty unless  good  ground  is  shown  for  apprehending  that 
there  is  danger  of  its  removal.^ ^     And  the  fears  and  appre- 

5  Poertner   v.  Russell,    33    Wis.,  » Matthews   v.   Hudson,    81    Ga., 

193.  120,  7  S.  E.,  286,  12'  Am.  St.  Rep., 

0  Lord  Bernard's    Case,    Finch's  305. 

Precedents,  454.  » Gannon   v.   Peterson,    193    111., 

7  Cannon  v.  Barry,  59  Miss.,  289;  372,  62  N.  E.,  210,  55  L.  R.  A.,  701. 

I/niversity  v.  Tucker,  31  West  Va.,  lo  Clagon  v.  Veasey,  7  Ired.  Eq., 

621,  8  S.  E.,  .410.    And  see  Cowand  175. 
V.  Meyers,  99  N.  C,  198,  6  S.  E.,  82. 


654  INJUNCTIONS.  [chap.  XT. 

tensions  of  the  remainder-man  are  not  sufficient  to  authorize 
the  injunction,  but  the  facts  must  be  shown  which  constitute 
the  danger  of  the  removal.^  ^  And  a  mere  expectancy  to  in- 
herit unaccompanied  by  any  estate  or  interest  in  the  land  is 
not  sufficient  to  authorize  an   injunction  against  waste.^^ 

§  688.  Waste  by  heir  at  law  disputing  will.  It  is  the  doc- 
trine of  the  Irish  Court  of  Chancery  that  equity  has  jurisdic- 
tion to  restrain  waste  committed  by  the  heir  in  possession  of 
realty  and  disputing  the  will  of  the  ancestor,  the  relief  in 
such  case  being  based  upon  the  necessity  of  preventing  ir- 
reparable injury  to  the  estate.^^  So  where  an  heir  at  law, 
disputing  the  will  of  his  ancestor,  has  entered  into  posses- 
sion of  the  devised  estates,  and  a  court  of  equity  directs  an 
issue  to  be  tried  at  law  as  to  the  validity  of  the  will, 
devisavit  vel  non,  upon  a  bill  by  the  executors  against  the 
heir  to  establish  the  will  the  court  may  properly  grant  an 
injunction  against  waste  by  the  heir  in  possession,  and  may 
also   appoint  a  receiver  over  the  estate.^  ^ 

§  689.  Devisee  for  life ;  removal  of  building  by  tenant ;  waste 
by  under-lessee.  A  devisee  for  life  may  be  restrained  by 
the  owner  in  fee  from  the  cutting  down  of  timber  other  than 
that  necessary  for  the  use  and  cultivation  of  the  premises.^  •'^ 
But  a  landlord,  who  is  not  entitled  to  the  reversion,  will  not 
be  allowed  to  enjoin  the  commission  of  waste  by  the  removal 
from  the  premises  of  a  building  erected  by  the  tenant,^  ^ 
though  a  ground  landlord  is  entitled  to  an  injunction  to  re- 
strain an  under-lessee  from  the  commission  of  waste.^'^ 

§  690.  Further  illustrations.  A  tenant  from  year  to  year 
may  be   enjoined   from   removing   crops,   straw   and   manure, 

11  Lehman  v.  Logan,  7  Ired.  Eq.,  '•'  Smith  r.  Poyas,  2  Desaus.  Eq., 
296.  65. 

12  Gwaltney  v.  Gwaltney,  119  ^o  Perrine  r.  Marsden,  34  Cal., 
Ind.,  144,  21  N.  E.,  552.  14. 

13  Fingal  v.  Blake,  2  Mol.,  50.  i^  Farrant  v.  Lovel,  3  Atk.,  723. 
"  Fingal  r.  Blake,  1   Mol.,  113. 


CHAP.  XI.]  AGAINST    WASTE.  655 

where  it  is  contrary  to  the  custom  of  the  country.^ ^  And  it 
has  been  held  that  the  sowing-  of  land  with  hurtful  crops  is 
such  waste  as  equity  will  restrain.^ ^  So  a  tenant  who  is 
abusing  his  right  of  estovers,  thereby  exceeding  his  right 
or  power  under  the  lease,  may  be  enjoined.  And  in  such 
case  no  length  of  time  will  justify  the  tenant  in  such  abuse, 
since  as  between  himself  and  his  landlord,  the  only  test  of 
the  tenant's  right  is  the  lease  under  which  he  holds.^o  And 
an  assignee  of  the  original  lessee,  holding  for  a  term  of  years, 
may  have  an  injunction  against  waste  committed  by  his 
under-lessee.2i  But  an  injunction  will  not  be  granted  in  be- 
half of  a  remainder-man  to  restrain  the  tenant  for  life  from 
opening  the  soil  in  new  places  for  the  digging  of  coal,  such 
use  of  the  premises  being  in  accordance  with  the  uniform 
practice  and  usage  of  the  country.22  Nor  will  an  interloc- 
utory injunction  be  granted  to  stay  the  commission  of  waste 
by  tenants  who  are  in  possession  of  the  premises,  and  who 
have  not  been  brought  before  the  court,  since  their  interest 
in  the  premises  being  a  legal  interest,  they  are  entitled  to 
protection,  and  should  be  made  parties  to  the  proceeding  be- 
fore being  enjoined.^^ 

§  691.     Changing  of  premises ;  violation  of  covenants.     The 

aid  of  equity  may  be  properly  invoked  by  the  owner  of  the 
fee  to  restrain  a  sub-lessee  from  effecting  such  changes  in 
the  premises  as  are  inconsistent  with  the  terms  of  the  lease, 
and  as  are  likely  to  result  in  such  injury  to  the  owner's 
right  as  is  not  susceptible  of  adequate  compensation  at  law.^* 
And  a  tenant  for  years  may  be  enjoined  at  the  suit  of  his 
lessor  from  using  the  premises  in  violation  of  his  covenants 

18  Pulteney   v.    Shelton,    5    Ves.,        21  Farrant  v.  Lovel,  3  Atk.,  723; 
147;   Onslow     v.     ,    16    Ves.,     S.  C,  Amb.,  105. 

173;   Pratt  v.  Brett,  2  Madd.,  62.  22  Clavering   v.    Clavering,    2     P. 

19  Pratt  V.  Brett,  2  Madd.,  62.  Wms.,  388. 

20  Lord     Courtown     v.    Ward,  1        23  Lord  Norbury  v.  Alleyne,  1  Dr. 
Sch.  &  Lef.,  8.  &  Wal.,  337. 

24Baugher  v.  Crane,  27  Md.,  36. 


656  INJUNCTIONS.  [chap.  XI. 

contained  in  the  lease.-^  So,  too,  the  lessor  may  restrain  his 
lessee,  or  those  claiming  under  him  or  acting  by  his  authority, 
from  converting  the  demised  premises  to  uses  repugnant  to 
the  terms  of  the  lease,-^  and  from  making  material  altera- 
tions, as  by  changing  a  building  rented  for  a  post  office  into 
a  beer  hall,-'^  or  a  dwelling  into  a  warehouse.^^ 

§  692.  Joint  tenants  and  tenants  in  common.  As  a  general 
rule  equity  will  not  interfere  to  restrain  waste  as  between 
joint  tenants,  tenants  in  common,  or  coparceners,  since  their 
right  is  equal  in  the  use  and  enjoyment  of  the  estate.^**  It  is 
otherwise,  however,  if  the  defendant  be  insolvent  and  in- 
capable of  responding  in  pecuniary  damages.^*^  And  where 
the  waste  is  destructive  to  the  estate,  and  not  within  the 
usual  and  legitimate  enjoyment  of  the  premises,  such  as  cut- 
ting growing  timber  not  necessary  to  carry  on  farming  opera- 
tions, the  relief  will  be  granted.^^  So,  too,  if  one  of  the 
parties  occupies  as  a  tenant  to  the  other,  equity  may  inter- 
fere.^2  And  the  husband  of  a  tenant  in  common  may  be  en- 
joined from  committing  waste,  in  an  action  brought  for  a 
partition  of  the  premises  between  the  eo-tenants.^^  But  ten- 
ants in  common  will  not  be  enjoined  from  cutting  timber 
where  insolvency  is  not  averred,  and  it  does  not  appear  that 
they  are  exceeding  their  share  of  the  timber.^"* 

§  693.  Waste  by  mortgagor  in  possession.  Again,  equity 
will  restrain  the  commission  of  waste  in  behalf  of  one  whose 

25  Frank  v,  Brunnemann,  8  West  N.   E.,   1048,  32  L.  R.  A.,  270,  51 

Va.,  462.  Am.   St.  Rep.,  711. 

2<i  Stewart  v.   Winters,   4    Sandf.  aoSmallman   v.    Onions,    3    Bro. 

Ch.,  587.     See  also  Frank  v.  Brun-  C.    C,    621;     Stout    v.    Curry,    110 

nemann,  8  West  Va.,  462.  Ind.,  514,  11  N.  E.,  487. 

ii7  Maddox  v.  White,  4  Md.,  72.  3i  Hawley    v.    Clowes,    2    Johns. 

2R  Douglass  V.  Wiggins,   1  Johns.  Ch.,  122;   Stout  v.  Curry,  110  Ind., 

Ch.,  435.  514,  11  N.  E.,  487. 

2'»  Goodwin  v.  Spray,  Dick.,  667;  sa  Twart  v.  Twart,  16  Ves.,  128. 

Hole  (;.  Thomas,  7  Ves.,  589;   Mott  as  Weise  i;.  Welsh,  3  Stew.,  431. 

V.   Underwood,   148   N.   Y.,   463,   42  ■'•»  Hihn  r.  Peck,  18  Cal.,  640. 


CHAP.  XI.] 


AGAINST    WASTE. 


657 


rights  are  only  equitable,  and  who  would  be  remediless  by 
the  strict  rules  of  law.  The  most  frequent  instance  of  the 
exercise  of  the  jurisdiction  in  such  cases  is  in  restraining 
waste  by  the  mortgagor  in  possession  of  mortgaged  prem- 
ises.^^  The  mortgagor  in  possession,  although  he  may  ex- 
ercise all  acts  of  ownership,  even  to  the  extent  of  commit- 
ting waste  which  does  not  impair  the  security ,^'^  or  render 
it  insufficient  or  of  doubtful  sufficiency,-'^^  will  nevertheless  be 
restrained  from  such  acts  as  depreciate  the  value  of  the  prem- 
ises and  render  the  security  insufficient.^^  Especially  is  this 
the  case  where  the  mortgagor  has  been  declared  a  bank- 
rupt, and  his  property  has  vested  in  an  assignee.^''  And  if 
necessary  the  injunction  will  be  allowed  before  the  mortgage 
is  due.'**^    And  a  mortgagee  of  an  undivided  interest  in  lands 


»5  For  a  full  discussion  of  the 
subject  of  injunctions  in  restraint 
of  waste  of  mortgaged  premises, 
see  chapter  VII,  ante,  subdivision 
IV. 

36  Kekewich  v.  Marker,  3  Mac.  & 
G.,  329. 

37  Moriarty  v.  Ashworth,  43 
Minn.,  1,  44  N.  W.,  531,  19  Am.  St. 
Rep.,  203. 

3s  Ensign  v.  Colburn,  11  Paige, 
~503;  Gray  v.  Baldwin,  8  Blackf., 
164;  Usborne  y.  Usborne,  Dick.,  75; 
Humphreys  v.  Harrison,  1  Jac.  &. 
W.,  581;  Robinson  v.  Preswick,  3 
Edw.  Ch.,  247;  Bunker  v.  Locke, 
15  Wis.,  635;  Fairbank  v.  Cud- 
worth,  33  Wis.,  358;  Maryland  v. 
Northern  C.  R.  Co.,  18  Md.,  193; 
Brown  v.  Stewart,  1  Md.  Ch.,  87. 
See  also  Coggill  v.  Millburn  Land 
Co.,  10  C.  E.  ureen,  87.  In  Brown 
V.  Stewart,  1  Md.  Ch.,  87,  it  is  said 
that,  "It  would  certainly  be  falling 
short  of  the  demands  of  justice 
and  the  exigency  of  the  case  if 
42 


this  court,  when  the  remedy  is 
sought  exclusively  here  (in 
equity),  has  not  the  power  in  a 
proper  case  to  protect  the  subject 
of  the  controversy  from  destruc- 
tion while  the  suit  is  depending." 
In  King  v.  Smith,  2  Hare,  244, 
Wigram,  Vice  Chancellor,  thus  de- 
fines the  term  "sufficient  security:" 
"I  think  the  question  which  must 
be  tried  is,  whether  the  property 
the  mortgagee  takes  as  a  security 
is  sufficient  in  this  sense — that  the 
security  is  worth  so  much  more 
than  the  money  advanced — that 
the  act  of  cutting  timber  is  not  to 
be  considered  as  substantially  im- 
pairing the  value,  which  was  the 
basis  of  the  contract  between  the 
parties  at  the  time  it  was  entered 
into." 

39  Ensign  v.  Colburn,    11    Paige, 
503. 

40  Murdock's  Case,  2  Bland,  461; 
Salmon  v.  Clagett,   3  Bland,  125. 


658  INJUNCTIONS.  [chap.  XI. 

held  by  tenants  in  common  may  enjoin  persons  in  posses- 
sion under  license  from  a  co-tenant  from  committing  waste 
by  cutting  timber  which  constitutes  the  chief  value  of  the 
estate.^^ 

§  694.  The  same.  The  principle  upon  which  the  inter- 
ference is  based  as  against  a  mortgagor  in  possession  is  two- 
fold: first,  the  right  of  the  mortgagee  to  his  whole  security 
unimpaired  during  the  life  of  the  mortgage  ;*2  ^j^^j^  second, 
that  as  between  mortgagor  and  mortgagee,  the  latter  is  con- 
sidered in  equity  as  the  owner  of  the  fee,  and  as  such  en- 
titled to  the  interference  of  the  court.*^  But  the  relief  will 
not  be  withheld  even  where  the  mortgagee  is  not  considered 
the  owner  of  the  fee.-*-*  And  where  the  mortgage  is  treated 
merely  as  a  security  for  the  debt,  the  injunction  is  allowed 
to  prevent  the  destruction  of  the  security.'*'^  So  equity  will 
enjoin  the  commission  of  waste  by  the  mortgagor  in  posses- 
sion even  after  forfeiture  has  occurred  on  his  part,  and 
after  the  right  to  proceed  at  law  has  accrued.'*^  But,  if 
adequate  damages  can  be  recovered  at  law  for  the  injury 
committed,  and  it  is  not  alleged  that  defendants  are  in- 
solvent, relief  in  equity  will  be  refused.^'^ 

§  695.  Chattel  mortgages.  The  same  principles  apply  to 
mortgages  of  chattels,  and  equity  will  interfere  to  restrain 
waste  committed  by  the  mortgagor  in  possession  after  de- 
fault, since  the  mortgagee  is  not  bound  to  take  possession 
of  the  property  by  process  of  law,  but  may  elect  to  seek  his 
remedy  in  equity.-*^     And  the  jurisdiction  may  be  exercised 

41  Atkinson   v.    Hewitt,    51    Wis.,         44  Brady    v.    Waldron,    2  Johns. 

275,  8  N.  W.,  211.  Ch.,  148. 

•«2  Nelson  v.  Pinegar,  30  111.,  473;         45  Cooper  v.  Davis,  15  Conn.,  561; 

Fairbank    v.    Cudworth,     33    Wis.,  Murdock's  Case,  2  Bland,  461;   Sal- 

358;    Humphreys    v.     Harrison,    1  mon  r.  Clagett,  3  Bland,  125. 
.lac.  &  W.,  581;   Robinson  v.  Pres-        -ic.  Maryland   v.   Northern    C.    R. 

wick,  3  Edw.  Ch..  247.  Co.,  18  Md.,  193. 

■••■t  Nelson  v.  Pinegar,  30  111.,  473;         47  Robinson  r.    Russell,    24    Cal., 

Robinson  v.  Litton,  3  Atk.,  209.  467. 

48  Parsons  v.  Hughes,  12  Md.,  1. 


CHAP.  XI.]  AGAINST    WASTE.  659 

before   the  mortgagee  is  entitled  to  proceed  at  law   for  the 
recovery  of  his  debt.'*^ 

§  696.  Plaintiff  who  has  parted  with  interest  denied  relief. 
Where  complainant,  after  mortgaging  his  premises,  has  sold 
the  equity  of  redemption  without  taking  security  as  an  in- 
demnity against  his  bond,  he  has  no  interest  in  the  land 
sufficient  to  warrant  an  injunction,  nor  will  it  be  granted  on 
the  ground  that  the  property  may  be  insufficient  to  satisfy 
the  mortgage,  and  that  he  will  be  held  liable  for  the  bal- 
ance.^^  And  where  complainant  has  parted  with  all  his  in- 
terest, and  holds  the  title  merely  as  security  for  the  pay- 
ment of  the  money  due  him,  he  stands  in  the  situation  of  a 
mortgagee  out  of  possession,  and  will  not  be  allowed  to  re- 
strain the  cutting  of  timber  unless  it  is  shown  that  the  se- 
curity  is   being   impaired.^^ 

49  Clagett  V.  Salmon,  5  Gill  &  J.,  -  si  Scott  v.  Wharton,  2  Hen.  & 
314.  M.,  25. 

50  Brumley  v.  Fanning,  1  Johns. 
Ch.,  501. 


CHAPTER  XII. 

OF    INJUNCTIONS    AGAINST    TRESPASS. 

I.    General    Features    of   the   Jurisdiction §  697 

II.     Cutting    Timber 723 

III.     Trespass  to  Mines 730 

I.     General   Features   op   the   Jurisdiction. 

§  697.  Origin  and  nature  of  the  jurisdiction. 

698.  Plaintiff  must  show  good  title;    exceptions  to  rule. 

699.  Remedy  at  law  a  bar  to  injunction;   the  doctrine  illustrated. 

700.  Exceptions;    coverture;    multiplicity   of   suits. 

701.  Conditions  necessary  to  relief. 

702.  Illustrations  of  irreparable  injury;  trespass  ripening  into  ease- 

ment. 
702a.  Further  illustrations. 

703.  Interference  with  burial  ground. 

704.  Encroachments  upon  adjacent  land;   projecting  buildings. 

705.  Limitations   upon  the  doctrine. 

706.  Erection  of  wooden  fence;  ditch  out  of  repair;  mud  and  earth. 

707.  Complete  and  incomplete  erections;  fraudulent  and  oppressive 

conduct. 

708.  When  injunction  made  mandatory. 

709.  Pulling  down  buildings;    taking  stone  from  quarry. 

710.  Erection  of  piers  by  foreign  corporations  enjoined. 

711.  Extinguishment  of   interest   in   common. 

712.  Injunction  not  granted  in  case  of  forcible  entry  and  detainer. 

713.  Remedy  at  law;    erection  of  trestle  work;    taking  stone  from 

ledge. 

714.  Interference  with  church    property;    when   injunction  perpetu- 

ated. 

715.  Interference  with  possession;   trespass  ripening  into  nuisance. 

716.  Removal  of  asphaltum;    landing  of  passengers;    dissolution  of 

injunction. 

717.  Insolvency;    continuing  act. 

718.  When  plaintiff  left  to  remedy  at  law. 

719.  Distinction  between   articles  of  necessity  and  of  luxury. 

720.  When   discretion   of   inferior  court  not  interfered   with. 

r.Go 


CHAP.  XII.]  AGAINST   TRESPASS.  661 

§  721.     Where  interlocutory  injunction  retained  to  the  hearing. 
722.     Requisites  of   bill;   damages  awarded  in  same  action. 
722a.  Trespass  upon   public   lands  enjoined. 
722&.  Adoption  of  legal  remedy  as  test  to  relief. 

§  697.  Origin  and  nature  of  the  jurisdiction.  The  grant- 
ing of  injunctions  against  the  commission  of  trespass  seems 
to  have  grown  out  of  the  jurisdiction  in  eases  of  waste,  to 
which  the  relief  was  formerly  confined.  Privity  of  title 
being  the  essential  ground  of  the  interference  in  restraint 
of  waste,  it  was  not  until  a  comparatively  recent  period  that 
the  rule  was  relaxed  to  admit  of  the  relief  against  a  naked 
trespass,  unaccompanied  with  privity  of  title.^  The  juris- 
diction may  now,  however,  be  regarded  as  well  established, 
although  it  is  still  sparingly  exercised,  being  confined  to 
cases  where  from  the  peculiar  nature  of  the  property 
affected  by  the  trespass  or  from  its  frequent  repetition  the 
injury  sustained  can  not  be  remedied  by  an  action  for 
damages,  and  where  it  may,  therefore,  be  properly  termed 
irreparable.  The  foundation  of  the  jurisdiction  rests  in  the 
probability  of  irreparable  injury,  the  inadequacy  of  pecuniary 
compensation,  and  the  prevention  of  a  multiplicity  of  suits, 
and  where  facts  are  not  shown  to  bring  the  case  within  these 
conditions,  the  relief  will  be  refused.^  Equity  will  not, 
therefore,  enjoin  a  mere  trespass  to  realty  as  such,  in  the 

1  Moore  v.  Ferrell,  1  Ga.,  7.    The  principle  was  afterward  recognized 

earliest    case    is    known    as    Flam-  and  followed  by  Lord  Eldon.     See 

ang's  Case,  cited  in  6  Ves.,  147,  7  Mitchell  v.  Dors,  6  Ves.,  147. 
Ves.,  308,  and  8  Ves.,  90,  in  which         ^  Thorn  v.  Sweeney,  12  Nev.,  251; 

Lord   Thurlow   granted   the     relief  Western    Union    Telegraph    Co.     v. 

with  reluctance  against  a  trespas-  Judkins,  7o  Ala.,  428;  McGregor  v. 

ser  who  was  working  into   miner-  Silver  King  Mining  Co.,   14   Utah, 

als    on    complainant's    close,    and  47,  45  Pac,  1091,  60  Am.  St.  Rep., 

thus    impairing    the    substance     of  883;    Myers    v.    Hawkins,   67   Ark., 

the  estate.     The  relief  was  based  413,  56  S.  W.,  640;   Collins  v.  Sut- 

solely  upon  the  irreparable  injury  ton,   94   Va.,    127,    26    S.     E.,    415; 

that   would   result   from   a   contin-  Moore  v.  Halliday,   (Ore.)   72  Pac, 

uation  of  the  trespass.     The  same  801. 


662  INJUNCTIONS.  [chap.  XII. 

absence  of  any  element  of  irreparable  injury.^  But  where, 
owing  to  the  peculiar  character  of  the  property  in  question, 
the  trespass  complained  of  can  not  be  adequately  compen- 
sated in  damages,  and  the  remedy  at  law  is  plainly  ina- 
dequate, equity  may  properly  interfere  by  injunction.*  So  a 
trespass  of  a  continuing  nature,  whose  constant  recurrence 
renders  the  remedy  at  law  inadequate  unless  by  a  multiplicity 
of  suits,  affords  sufficient  ground  for  relief  by  injunction.-^ 
So  where  the  acts  of  trespass  are  constantly  recurring,  al- 
though each  act,  taken  by  itself,  would  neither  be  destruc- 
tive of  the  estate  nor  inflict  irreparable  injury,  and  the  legal 
remedy  would  therefore  be  entirely  adequate  to  redress  each 
act  taken  alone,  equity  will  restrain  such  trespasses,  basing 
the  relief  in  such  cases  upon  the  utter  inadequacy  of  the 
remedy  at  law.^  So  equity  may  properly  interfere  to  re- 
strain repeated  and  continuous  trespasses  where  it  would  be 
difficult  or  impossible  to  ascertain  the  damage  resulting 
from  each  act  complained  of."     So  also  relief  may  be  granted 

3  German  v.  Clark,  71  N.  C,  417:  178  111.,  29,  52  N.  E.,  973,  43  L.  R. 

Smith  V.  Gardner,  12  Ore.,  221,  6  A.,  645,  69  Am.  St.  Rep.,  286;  Tay- 

Pac,    771;    Miller    v.    Burket,    132  lor  v.   Pearce,   179   111.,  145,  53   N. 

Ind.,  469,  32  N.  E.,  309;  Waters  v.  E.,    622;    Lonsdale    Co.   v.    City   of 

Lewis,  106  Ga.,  758,  32  S.  E.,  854.  Woonsocket,  21  R.  I.,  498,  44  Atl.. 

But  in   Iowa    it  would   seem   that  929;  United  States  F.  L.  &  E.  Co.  v. 

an   injunction  may   be  had  to  re-  Gallegos,  32  C.  C.  A.,  470,  89  Fed., 

strain   a  mere  trespass  to  realty.  769;   Pittsburg,  S.  &  W.  R.  Co.  i\ 

See  Grant  v.  Crow,  47  Iowa,  632.  Fiske,  60   C.  C.  A.,  621,  123   Fed., 

•»  Clark    V.   Jeffersonville   R.   Co.,  760;  Strawberry  C.  Co.  v.  Chipman, 

44  Ind.,  248;  Poughkeepsie  Gas  Co.  13  Utah,  454,  45  Pac,  348;  Hooper 

V.  Citizens  Gas  Co.,  89  N.  Y.,  493.  v.  Dora  C.  M.  Co.,  95  Ala.,  235,  10 

5  Ellis   V.   Wren,   84    Ky.,   254,   1  So.,  652;    Shaffer  v.  Stull,  32  Neb., 

S.    W.,    440;    Palmer  v.   Israel,   13  94,  48  N.  W.,  882. 
Mont,    209,    33    Pac,     134;     Milan         c  Murphy  v.  Lincoln,  63  Vt,  278, 

Steam   Mills  v.   Hickey,   59   N.   H.,  22   Atl.,   418;     Griffith   v.   Hilliard, 

241;   Ellis  v.  B.  M.  F.  Assn.,  69  N.  64  Vt.,   643,  25   Atl..   427;    Colliton 

H.,  385,  41  Atl.,  856,  42  L.  R.  A.,  v.  Oxborough,  86  Minn.,  361,  90  N. 

570;    Coatsworth   r.    Lehigh   V.    R.  W.,  793. 

Co.,  156  N.  Y.,  451,  51  N.  E.,  301;         "Boston  &  M.  R.  Co.  v.  Sullivan. 

Carpenter   v.   Capital    Electric   Co.,  177   Mass.,    230.   58    N.    E.,   689,  83 


CHAP.  XII.]  AGAINST  TRESPASS.  663 

where,  from  the  nature  of  the  case,  it  will  be  impossible  to 
estimate  the  actual  damage  which  the  plaintiff  will  suffer.^ 
But  where  the  recurrence  of  the  injury  complained  of  is  not 
to  be  apprehended  and  the  remedy  at  law  is  consequently 
adequate,  relief  by  injunction  is  properly  denied.^  And  the 
injury  resulting  from  a  trespass,  in  order  to  be  a  continuing 
one  justifying  relief  by  injunction,  must  be  of  such  a  char- 
acter that  its  recurrence  is  not  dependent  upon  any  act  to 
be  done  by  any  person,  but  results  from  a  continuing  state 
or  condition  of  things  caused  by  the  act  of  trespass  itself.^** 

§  698.     Plaintiff  must  show  good  title ;  exceptions  to  rule. 

To  warrant  the  relief  in  this  class  of  cases  the  party  ag- 
grieved must  show  a  satisfactory  title  to  the  locus  in  quo, 
and  if  the  title  be  denied  or  in  doubt  the  injunction  will 
generally  be  refused  against  a  defendant  in  possession,  until 
the  title  is  established  at  law.^^  And  upon  the  same  prin- 
ciple the  relief  will  be  denied  against  one  in  possession  where 
the  right  to  the  possession  is  in  dispute.^^  g^^  ^^  mere  de- 
nial of  plaintiff's  title  is  not  alone  sufficient,  but  such  denial 
must   be   supported   by    allegations   of   fact   which   show   the 

Am.   St.  Rep.,  275;    New  York,  N.  Utah,   331;     Kellar    v.    Bullington, 

H.    &    H.    R.     Co.    V.    Scovill,   71  101  Ala.,  267,  14  So.,  466.     See  also 

Conn.,  136,   41   Atl.,  246,   42  L.  R.  Walker  r.  Fox,  85  Tenn.,  154,  2  S. 

A.,  157,  71  Am.  St.  Rep.,  159.  W.,    98.      In    New    York    it    would 

«  Southern  Pac.  R.  Co.  v.  City  of  seem   that   the    rule   requiring   the 

Oakland,    58   Fed.,   50;    Indianapo-  Tight,  when  in  doubt,  to  be  estab- 

lis  N.  G.  Co.  V.  Kibbey,  135   Ind.,  lished    at   law   as    a   condition    to 

357,  35  N.  E.,  392.  equitable   relief,   is   one   of   discrc- 

9  Garrett  r.  Bishop,  27  Ore.,  349,  tion  rather  than  of  jurisdiction 
41  Pac,  10.  and   that   a  court  of  equity   may, 

10  Deegan  v.  Neville,  127  Ala.,  in  the  first  instance  and  notwith- 
471,  27  So.,  173,  85  Am.  St.  Rep.,  standing  defendant's  denial  of  the 
137.  plaintiff's  title  to  the  locus  in  quo, 

11  Perry  v.  Parker,  1  Woodb.  &  proceed  to  adjudicate  the  question 
M.,  280;  Chesapeake,  0.  &  C.  Co.  of  title  and  grant  equitable  relief 
r.  Young,  3  Md.,  480;  Eskridge  v.  accordingly.  Baron  v.  Korn,  127 
Eskridge,  51  Miss.,  522;    Old  Tele-  N.  Y.,  224,  27  N.  E.,  804. 

graph  M.   Co.  v.   Central   S.  Co.,  1         12  Bowling  v.    Crook,     104    Ala.. 

130,  16  So.,  131. 


664 


INJUNCTIONS. 


[chap.  XII. 


existence  of  a  substantial  dispute.^^  And  the  rule  has  been 
relaxed  in  strong  cases  of  irreparable  injury,  as  where  the 
trespass  will  result  in  the  destruction  of  the  substance  or 
chief  value  of  the  estate,  and  in  such  cases  temporary  in- 
junctions are  frequently  granted  until  the  determination  of 
the  disputed  question  of  title  in  an  action  at  law  either  pend- 
ing or  about  to  be  commenced.^*  And  where  the  party  ag- 
grieved is  in  possession  he  will  be  allowed  to  restrain  such 
trespasses  as  would  result  in  irreparable  damage  in  the  event 
of  refusing  the  relief.^ -^     Equity  will  not,  however,  enjoin  a 


13  Miller  v  Lynch,  149  Pa.  St., 
460,  24  Atl.,  80. 

14  Burnley  v.  Cook,  13  Tex.,  586; 
Hart  V.  Mayor  of  Albany,  9  Wend., 
570,  affirming  S.  C,  3  Paige,  213; 
Bettman  v.  Harness,  42  West  Va., 
433,  26  S.  E.,  271,  36  L.  R.  A.,  566; 
Freer  r.  Davis,  52  West  Va.,  1,  43 
S.  E.,  164,  59  L.  R.  A.,  556,  94  Am. 
St.  Rep.,  895;  Sautee  River  Cypress 
Lumber  Co.  v.  James,  50  Fed.,  360; 
King  V.  Campbell,  85  Fed.,  814; 
Wadsworth  v.  Goree,  96  Ala.,  227, 
10  So.,  848.  In  Vermont,  when  the 
title  to  the  locus  in  quo  is  in  dis- 
pute, it  is  discretionary  with  the 
court  to  issue  a  temporary  injunc- 
tion, continuing  it  in  force  during 
such  time  as  may  be  necessary  to 
enable  the  plaintiff  to  establish  his 
title  at  law.  Griffith  v.  Hilliard, 
64  Vt.,  643,  25  Atl.,  427.  Where  a 
temporary  injunction  has  been 
granted  pending  the  determina- 
tion of  the  question  of  title  in  an 
action  at  law,  the  injunction 
should  be  dissolved  and  the  bill 
dismissed  upon  a  judgment  in  fav- 
or of  the  defendant  in  the  action 
at  law.  King  v.  Williamson,  25  C. 
C.  A.,  355,  80  Fed.,  170;  King  v. 
Buskirk,  24   C.  C.  A.,  82,  78  Fed., 


233.  See  Freer  v.  Davis,  52  West 
Va.,  1,  43  S.  E.,  164,  59  L.  R.  A., 
556,  94  Am.  St.  Rep.,  895,  supra, 
upon  the  question  whether,  having 
taken  jurisdiction  by  the  issuing 
of  a  temporary  injunction,  the 
court  may  adjudicate  the  question 
of  title  under  the  general  rule  that, 
where  equity  takes  jurisdiction  for 
one  purpose,  it  retains  it  for  all 
purposes. 

15  Lowndes  v.  Bettle,  33  L.  J.  Ch., 
451;  Stanford  v.  Hurlstone,  L.  R. 
9  Ch.  App.,  116.  In  Lowndes  v. 
Bettle,  complainant  and  his  ances- 
tors had  been  in  possession  during 
a  period  of  eighty  years,  and  de- 
fendant, who  claimed  as  heir  at 
law,  sought  to  enter  and  exercise 
acts  of  ownership  by  cutting  sods 
and  timber.  The  injunction  was 
granted  upon  the  principle  stated 
in  the  text.  The  distinctions  rest- 
ing upon  the  question  of  possession 
are  very  clearly  set  forth  by  Kin- 
dersley.  Vice  Chancellor,  as  fol- 
lows: "Where,  therefore,  the 
plaintiff  is  in  possession,  and  the 
person  doing  the  acts  complained 
of  is  an  utter  stranger,  not  claim- 
ing under  color  of  right,  the  tend- 
ency of  the  court  is  not  to  grant 


CHAP.  XII.]  AGAINST  TEESPASS.  665' 

trespass  to  realty  when  plaintiff's  title  is  in  dispute  and  has 
not  been  established  at  law,  when  no  irreparable  injury  is 
shown.^"^  And  when  defendants  are  in  possession  alike  with 
plaintiffs  of  the  premises  in  controversy,  and  the  title  is 
doubtful  and  disputed,  and  it  is  not  shown  that  plaintiff's 
have  taken  any  steps  to  establish  their  title  and  no  reason 
is  shown  why  they  are  not  so  doing,  they  w411  be  denied  an 
injunction.  In  such  case  a  court  of  equity  will  not  presume 
to  determine  the  title  to  the  property  upon  affidavits,  and 
will  not  permit  a  temporary  injunction  to  be  granted  which 
would  operate  as  an  action  of  ejectment.^'^  And  where  the 
authorities  of  a  city  are  threatening  to  remove  and  destroy 
a  floating  store-house  constructed  by  complainants  and 
moored  by  them  in  a  public  basin  or  harbor,  but  complain- 
ants fail  to  show  any  right  or  title  to  establish  or  continue 
their  erection  in  the  place  in  question,  equity  will  refuse  to 
enjoin  the  threatened  action  because  of  such  failure  to  es- 
tablish any  legal  right.^^  So  when  the  trespass  complained 
of  consists  in  an  entry  by  defendants  upon  the  premises  in 
question  and  the  erection  of  buildings  thereon,  there  being  a. 
dispute  as  to  the  title,  and  the  injury  being  a  naked  tres- 
pass which  will  not  produce  irreparable  mischief  or  tend  to 
the   destruction  of  the  inheritance,   equity  will  not  eujoin.^'^ 


an  injunction,  unless  there  are  spe-  Paige,  213;   Tribune  Association  v. 

cial     circumstances,    but    to  leave  The  Sun,  7  Hun,  175. 

the  plaintiff  to  his  remedy  at  law,  le  Maloon    v.    White,    57    N.     H., 

though  where  the  acts  tend  to  the  152;    Cresap    v.    Kemble,    26    West 

destruction  of  the  estate,  the  court  Va.,    603;    Watson     v.    Farrell,     oi 

will  grant  it.    But  where  the  party  West    Va.,    406,     12     S.     E.,     724; 

in  possession  seeks  to  restrain  one  Sharpe  v.  Loane,  124  N.  C,   1,  32 

who  claims  by  adverse  title,  there  S.   E.,  318. 

the  tendency  will  be  to  grant  the  i^  Old  Telegraph  M.   Co.  v.   Cen- 

injunction,  at  least  where  the  acts  tral  S.  Co.,  1  Utah,  331. 

done  either   did   or   might   tend  to  ^s  Hart   v.    Mayor   of  Albany,     9 

the  destruction  of  the  estate."  And  Wend.,  572,  affirming  S.  C,  3  Paige, 

see  Hart  v.  Mayor    of    Albany,     3  213. 

19  LeRoy  v.  Wright,  4  Sawy.,  530., 


666  INJUNCTIONS.  [chap.  XII. 

And  where  the  title  to  the  premises  is  in  dispute,  both  parties 
claiming  title  thereto,  it  is  held  that  an  interlocutory  in- 
junction should  be  dissolved  upon  answer  disclosing  defend- 
ants' claim  of  title  and  showing  that  they  are  acting  in  good 
faith,  believing  themselves  to  be  the  owners  of  the  premises, 
and  that  they  are  not  insolvent.^o  But  it  is  held  that  the 
denial  of  plaintiff's  title  by  the  answer  will  not,  of  itself,  suf- 
fice to  dissolve  the  injunction.^i  And  where  the  trespass  con- 
sists in  the  erection  of  a  building  partly  upon  lands  claimed 
by  plaintiff  and  in  using  the  whole  of  plaintiff's  house  as  a 
party-wall,  the  question  of  title  being  in  dispute  between 
the  parties,  a  temporary  injunction  is  proper  to  preserve  the 
status  quo  until  the  title  can  be  determined  in  an  action  at 
law.22  And  the  relief  may  be  allowed,  in  a  proper  case,  upon 
the  application  of  the  holder  of  the  equitable  title.^^  But 
equity  will  not  enjoin  interference  with  a  mere  chattel  in- 
terest in  lands,  when  it  is  not  shown  that  the  injury  is  ir- 
reparable, or  that  defendant  is  insolvent.-'^  And  a  trespasser 
upon  real  property  will  not  be  allowed  an  injunction  to  pro- 
tect his  possession  by  restraining  the  former  occupants  from 
maintaining  their  possession. ^-'^ 

§699.  Remedy  at  law  a  bar  to  injunction;  the  doctrine 
illustrated.  A  fundamental  doctrine  underlying  the  entire 
jurisdiction  of  equity  by  injunction  against  the  commission 
of  trespass  is,  that  where  adequate  relief  may  be  had  in  the 
usual  course  of  procedure  at  law,  equity  will  not  interpose 
by  the  extraordinary  remedy  of  injunction.^^     For  example, 

20  Bell  V.  Chadwick,  71  N.  C,  329.  619.     And   see   Davis   v.   Stark,  30 

21  Moore  v.  Ferrell,  1  Ga.,  7.  Kan.,  565,  2  Pac,  637. 

22  Clayton  v.  Shoemaker,  67  Md.,  26  Cooper  v.  Hamilton,  8  Blackf., 
216,  9  Atl.,  635.  377;    Smith  i\  Smith,  4  Jones  Eq., 

2'!  Wilson   V.    Rockwell,    29    Fed.,  303;  Gause  v.  Perkins,  3  Jones  Eq., 

674.  177;   Stevens  v.  Beekman,  1  Johns. 

2<  Ellsworth    V.    Hale,     33    Ark.,  Ch.,   318;    Murray    v.    Knapp,     62 

633.  Barb.,  566;    Thorn  r.   Sweeney,   12 

2r.  Littlejohn  v.  Attrill,  94  N.  Y.,  Nev.,    251 ;    Spofford    v.    Bangor    & 


CHAP.  XII.]  AGAINST  TRESPASS,  667 

where  plaintiff  is  out  of  possession,  although  claiming  the 
title  in  fee,  he  will  not  be  allowed  to  enjoin  defendants 
from  entering  upon  the  premises  or  committing  acts  of  tres- 
pass thereon,  the  remedy  at  law  being  ample  in  such  case.-''^ 
And  where  a  sheriff  has  attempted  to  sell  plaintiff's  real 
estate  under  a  judgment  against  the  former  owner,  which 
it  is  alleged  is  not  a  lien  upon  the  premises  in  plaintiff' 's 
hands,  the  sheriff  will  not  be  enjoined  from  attempting  to 
dispossess  him,  since  the  appropriate  remedy  would  be  an 
action  of  trespass  against  the  sheriff'.-^  So  when  upon  a  bill 
to  enjoin  interference  with  real  property  claimed  by  plaintiff 
it  is  alleged  that  defendant  has  intermeddled  with  the  prop- 
erty and  forbidden  the  lessees  to  pay  rent,  and  that  he  has 
forcibly  entered  one  of  the  buildings  upon  the  premises,  no 
sufficient  ground  is  shown  for  the  injunction,  since  the  griev- 
ances complained  of  may  all  be  remedied  at  law.^^     And  the 

B.  R.  Co.,  66  Me.,  51;   Seymour  v.  41    N.    E.,    154;    Harms   v.   Jacobs, 

Morgan,    45     Ga.,    201;      Burns    v.  158  111.,  505,  41  N.  E.,  1071;   Lana- 

Burns,  13  Fla.,  369;  Odlin  v.  Wood-  han   r.  Gahan,   37   Md.,  105;    Nico- 

ruff,  31  Fla.,  160,  12  So.,  227,  22  L..  demus  v.  Nicodemus,  41  Md.,  529; 

R.   A.,  699;    Carney  v.   Hadley,  32  Whalen    v.     Dalashmutt,     59    Md., 

Fla.,  344,  14  So.,  4,  22  L.  R.  A.,  233,  250;    Boyden  v.   Bragaw,   53   N.   J.' 

37    Am.    St.    Rep.,     101;     Minnig's  Eq.,    26,    30    Atl.,    330;     Fisher     r. 

Appeal,  82  Pa.  St.,  373;   Jordan  v.  Carpenter,   67  N.   H.,  569,   39  Atl., 

Lanier,    73    N.    C,    90;     Frink     v.  1018;    Mobile  &  G.  R.  Co.  v.  A.  M. 

Stewart,  94  N.  C,  484;   Morganton  R.    Co.,    87    Ala.,    520,    6    So.,    407; 

L.    &   I.    Co.    V.   Webb,    117    N.    C,  Kellar  v.  Bullington,  101  Ala.,  267. 

478,  23  S.  E.,  458;  Sharpe  v.  Loane,  14   So.,   466;    Collins  v.   Sutton,   94 

124  N.  C,  1,  32  S.  E.,  318;    Smith  Va.,  127,  26  S.  E.,  415;    Heane'y  v. 

V.    Gardner,    12    Ore.,    221,    6    Pac,  Butte  &  M.   C.  Co.,  10  Mont.,  590, 

771;    Tomasini  v.  Taylor,   42  Ore.,  27  Pac,  379;  Perry  y.  Hamilton,  138 

576,  72  Pac,  324;   Smith  v.  City  of  Ind.,  271,  35  N.  E.,  836;    Beatty  r. 

Oconomowoc,  49  Wis.,  694,  6  N.  W.,  Smith,    14   S.   Dak.,   24,   84   N.   W., 

329;    Mechanics  Foundry  v.  Ryall,  208. 

62  Cal.,  416;    Meeker  v.  Gilbert,  3  -'  Spofford    v.    Bangor  &    B.     R. 

Wash.,  369;    Goodell  v.  Lassen,  69  Co.,  66  Me.,  51. 

111.,  145;  Chicago  Public  Stock  Ex-  28  Seymour    v.    Morgan,     45    Ga., 

change    r.     McClaughry,    148     111.,  201. 

372,   36  N.   E.,  88;    Commissioners  29  Burns  r.  Burns,  13  Fla.,  369. 
of  Highway  v.  Green,  156  111.,  504, 


66S  INJUNCTIONS.  [chap.  XII. 

mere  entry  upon  and  use  of  plaintiff's  land  by  defendant  for 
the  purpose  of  constructing  a  stone  culvert  over  a  mill-race 
belonging  to  defendant  is  not  such  a  trespass  as  to  warrant 
relief  by  injunction,  the  injury  not  being  irreparable  in  its 
character,  or  such  as  can  not  be  compensated  in  an  action 
at  law.^*^  So  defendant  will  not  be  restrained  from  using 
a  division  wall  between  his  premises  and  those  of  plaintiff, 
when  the  rights  involved  are  purely  legal  rights,  and  the 
injury  sustained,  if  any,  is  susceptible  of  adequate  redress 
at  law.  Especially  will  the  relief  be  refused,  in  such  case, 
when  plaintiff'  has  parted  with  his  title  to  the  lands  in  ques- 
tion after  the  filing  of  the  bill.^^  And  where  the  trespass 
which  it  is  sought  to  enjoin  is  but  of  a  fugitive  or  tem- 
porary nature  such  as  the  removal  of  a  fence  separating  de- 
fendant's premises  from  those  of  plaintiff,  which  may  be 
readily  compensated  in  damages,  a  court  of  equity  will  de- 
cline to  interfere  by  injunction.^^  So  when  a  tenant  is  en- 
gaged in  the  business  of  pawnbroking,  he  will  not  be  en- 
joined, at  the  suit  of  his  landlord,  from  attaching  to  the 
premises  the  usual  pawnbroker's  sign  of  three  balls,  as  in- 
dicating his  business,  since  if  any  injury  would  result  to  the 
landlord  from  such  offensive  sign  his  remedy  at  law  would 
be  ample.^^ 

§  700.  Exceptions ;  coverture ;  multiplicity  of  suits.  To  the 
general  doctrine  as  above  stated,  denying  relief  by  injunc- 
tion against  a  trespass  for  which  adequate  remedy  exists  at 
law,  an  exception  is  recognized  where  the  equitable  owner  of 
the  proi>erty  injured  is  under  some  disability  which  would  pre- 
vent the  enforcement  of  the  legal  remedy,  as  where  property 
is  bequeathed  to  a  feme  covert  as  her  separate  estate,  with- 
out the  intervention  of  a  trustee,  the  legal  estate  thereby 
vesting   in   the   husband.      In   such    case    equity   will    restrain 

■■■■<>  Nicodemus    v.    Nicodemus,    41        'i-  Minnig's    Appeal,    82    Pa.     St., 

Md.    529.  373;  .Jordan  r.  Lanier,  73  N.  C,  90. 

:>'  Lanahan  r.  Gahan,  37  Md.,  105.         •-!  Goodell  r.  Lassen,  69  111.,  145.. 


CHAP.  XII.]  AGAINST  TRESPASS.  669 

the  sale  of  the  property  under  execution  against  the  hus- 
band.34  The  necessity  of  preventing  a  multiplicity  of  suits 
affords  another  exception  to  the  rule,  and  will  warrant  the 
interposition  of  the  strong  arm  of  equity,  even  though  there 
be  a  remedy  at  law.^^  But  to  warrant  the  interference  in 
such  cases  there  must  be  different  persons  assailing  the  same 
right,  and  the  principles  upon  which  the  relief  is  granted 
liave  no  application  to  a  repetition  of  the  same  trespass  by 
one  and  the  same  person,  the  case  being  susceptible  of  com- 
pensation in  damages.^*^ 

§  701.  Conditions  necessary  to  relief.  To  warrant  the  in- 
terference of  equity  in  restrain  of  trespass,  two  conditions 
must  co-exist:  first,  complainant's  title  must  be  established; 
and,  second,  the  injury  complained  of  must  be  irreparable 
in  its  nature.^'^  And  to  come  within  the  rule  the  injury 
must  be  of  such  a  nature  as  not  to  be  susceptible  of  adequate 
pecuniary  compensation  in  damages.^'^  Nor  will  equity  in- 
terfere to  restrain  a  trespasser  simply  because  he  is  a  tres- 
passer,   but    only   because    the    injury   threatened    is   ruinous 

34  Smith  V.  Smith,  4  Jones  Eq.,  Bright,  24  West  Va.,  698;  Cresap  u. 
303.  Kemble,  26  West  Va.,  603;   Lazzell 

35  Coit  V.  Horn,  1  Sandf.  Ch.,  1;  v.  Garlow,  44  West  Va.,  466,  30  S. 
Hatcher  v.  Hampton,  7  Ga.,  50;  E.,  171;  Burns  r.  Mearns,  44  West 
Nutbrown  r.  Thornton,  10  Ves.,  Va.,  744,  30  S.  E.,  112;  Becker  v. 
159;  Pretecea  v.  Maxwell  Land  McGraw,  48  West  Va.,  539,  37  S. 
Grant  Co.,  1  C.  C.  A.,  607,  50  Fed.,  E.,  532;  Freer  v.  Davis,  52  West 
v€74.  Va.,  1,  43   S.   E.,  164,  59   L.   R.  A., 

36Deegan  v.   Neville,    127    Ala.,  556,  94  Am.  St.  Rep..  895;    Norton 

471,  29   So.,  173,  85  Am.  St.  Rep.,  v.    Elwert,    29    Ore.,    583,    41    Pac, 

137;    Hatcher   v.   Hampton,   7   Ga.,  926;    Sharpe  v.   Loane,   124   N.   C, 

50;      Chicago     Public     Stock     Ex-  1,  32  S.  E.,  318. 
change     v.     McClaughry,    148    HI.,         3s  Weigel  v.  Walsh,  45  Mo.,  560; 

572,  36  N.  E.,  88;  Chicago  Gen.  Ry.  Bethune    v.    Wilkins,    8    Ga.,    118; 

Co.  V.  C,  B.  &  Q.  R.  Co.,  181  111.,  Vanwinkle  v.  Curtis,  2  Green  Ch., 

'605,   54    N.    E.,    1026;    Roebling   v.  422;   Shipley  r.  Ritter,  7  Md.,  408; 

First  National  Bank,  30  Fed.,  744.  Foster,  Ex  parte,    11     Ark.,    304; 

3T  Gause  v.  Perkins,  3  Jones  Eq.,  Ross  v.  Page,  6  Ohio,  166;   Sharpe 

177;  Schurmeier  v.  St.  Paul  &  P.  v.  Loane,  124  N.  C,  1,  32  S.  E.,  318. 
R.  Co.,  8  Minn.,  113;  Schoonover  v. 


670  INJUNCTIONS.  [chap.  XII. 

to  the  property  in  the  manner  in  which  it  has  been  enjoyed 
and  will  permanently  impair  its  future  enjoyment.  And  if 
the  title  to  the  locus  in  quo  is  in  doubt,  the  injunction,  if 
allowed  at  all,  should  be  only  temporary  until  the  title  can 
be  determined  at  law.^^  But  where  the  questions  of  law  and 
of  fact  are  serious  and  where  the  injury  resulting  to  the 
plaintiff  from  being  denied  a  preliminary  injunction  would 
be  great,  while  the  injury  to  the  defendant  resulting  from 
the  granting  of  the  writ  would  be  insignificant,  a  prelim- 
inary injunction  may  be  allowed  to  retain  matters  in  statu 
quo  until  a  final  determination.^^ 

§702.  Illustrations  of  irreparable  injury;  trespass  ripening 
into  easement.  It  is  frequently  a  matter  of  difficulty  to  de- 
termine what  constitutes  such  a  degree  of  irreparable  injury 
as  to  M^arrant  a  court  of  equity  in  enjoining  what  might  other- 
wise seem  to  be  an  ordinary  act  of  trespass,  for  which  an 
adequate  remedy  at  law  might  be  found.  But  where  it  is 
shown  that  defendant,  acting  under  the  orders  of  the  regu- 
larly constituted  authorities  of  a  municipal  corporation,  is 
about  to  destroy  fences,  fruit  and  ornamental  trees  and 
shrubbery  growing  upon  premises  owned  and  occupied  by 
plaintiff  as  a  homestead,  under  an  unfounded  pretense  that 
they  are  within  the  limits  of  a  public  street,  the  threatened 
acts  are  so  clearly  irreparable  as  to  warrant  relief  in  equity 
by  injunction.  In  such  a  case  a  mere  money  compensation 
would  not  afford  adequate  relief,  and  the  refusal  of  an  in- 
junction would,  in  effect,  be  a  denial  by  justice.-*^  So  the 
unauthorized  and  forcible  entry  upon  land  owned  b}^  and 
in  the  possession  of  plaintiff',  and  defacing  his  boundaries 
and   establishing   new   ones,    aft'ord   sufficient    ground   for   an 

10  Echelkamp     v.     Schrader,     45  Point,  39  vVis.,  160;  Uren  y.  Walsh, 

Mo.,   505;    Mayor    /;.    Groshon,    30  57  Wis.,  98,  14  N.  W.,  902;  Village 

Md.,  436.  of  Itasca  v.  Schroeder,  182  111.,  192, 

40  Diniick  v.   Shaw,  36  C.   C.  A.,  55  N.  E.,  50;   Schock  r.  Falls  City. 

347,  94   Fed.,  266.  31  Neb.,  599,  48  N.  W.,  468. 

*i  Wilson     V.     City     ot     Mineral 


i 


CHAP.  XII.]  AGAINST  TRESPASS.  671 

injunction.*-  So  when  the  trespass  complained  of  is  repeated 
or  continued,  in  the  nature  of  a  nuisance,  or  when  the  wrong- 
ful acts  continued  or  threatened  to  be  continued  may  become 
the  foundation  of  adverse  rights  and  may  occasion  a  multi- 
plicity of  suits  to  recover  damages,  the  case  presents  such 
equitable  features  as  to  entitle  complainant  to  the  aid  of  an 
injunction.*^  So,  too,  a  trespass  which  if  continued  will  ripen 
into  an  easement  may  properly  be  enjoined.**  Thus,  the 
tearing  down  of  fences  by  a  highway  officer  for  the  purpose 
of  laying  out  a  highway  across  plaintiff's  premises,  where 
none  has  been  established,  disturbs  plaintiff's  possession,  and 
will  if  continued  ripen  into  an  easement ;  hence  equity  may 
properly  interpose  by  injunction  in  such  a  case.*^  And  where 
an  injunction  is  granted  upon  the  ground  that  the  trespass 
may  ripen  into  an  easement,  the  question  of  damages  is  im- 
material and  the  relief  will  be  allowed  although  the  act  com- 
plained of  results  in  no  actual  or  substantial  present  injury 
to  the  plaintiff.**'  But  the  fact  that  the  trespass,  if  con- 
tinued, may  give  rise  to  an  easement,  does  not,  of  itself, 
afford  ground  for  an  injunction  in  advance  of  the  final  hear- 
ing.*^ 

§  702  a.  Further  illustrations.  As  further  illustrating  the 
doctrine  under  discussion,  it  is  held  that  where  the  acts  of 
trespass  are  constantly  recurring  but  the  injury  resulting 
from  each  separate  act  is  trifling,  so  that  the  damages  re- 
coverable for  each  act  would  be  very  small  w^hen  compared 

42  Preston  v.  Preston,  85  Ky.,  16,  456,  26  Pac,  968;  Mott  v.  Ewing, 
2  S.  W.,  501.  90  Cal.,  231,  27  Pac,  194. 

43  Johnson  v.  City  of  Rochester.  4"'  Poirier  v.  Fetter,  20  Kan.,  47. 
13  Hun,  285;  Newaygo  M.  Co.  v.  4  6  Amsterdam  Knitting  Co.  v. 
Chicago  &  W.  M.  R.  Co.,  64  Mich.,  Dean,  162  N.  Y.,  278,  56  N.  E.,  757; 
114,  30  N.  W.,  910;  Shaffer  v.  Walker  v.  Emerson,  89  Cal.,  456, 
Stiill,  32  Neb.,  94,  48  N.  W.,  882.  26    Pac,    968;    Mott    v.    Ewing,    90 

44  Poirier  v.  Fetter,  20  Kan.,  47;  Cal.,  231,  27  Pac,  194. 

Murphy  v.  Lincoln,  63  Vt,  278,  22  4-  McGregor  v.  Silver  King  Min- 

Atl.,  418;  Amsterdam  Knitting  Co.  ing  Co.,  14  Utah,  47,  45  Pac,  1091, 

V.  Dean,  162  N.  Y.,  278,  56  N.  E.,  60  Am.  St.  Rep.,  883. 
757;    Walker   v.  Emerson,  89   Cal., 


•672  INJUNCTIONS.  [chap.  XII. 

with  the  expense  necessary  to  prosecute  separate  actions  at 
law  therefor,  relief  will  be  granted  owing  to  the  inadequacy 
of  the  legal  remedy.^^  So  where  a  trespass  upon  land  is 
repeated  and  continuous  and,  if  continued,  will  result  in  the 
destruction  of  the  substance  of  the  estate,  relief  is  properly 
allowed.^^  So  the  repeated  removal  of  plaintiff's  fences, 
■coupled  with  threats  of  continuing  such  removal  as  often  as 
the  fences  are  replaced,  defendant  being  insolvent,  will  war- 
rant relief  by  injunction,  as  well  upon  the  ground  of  in- 
adequacy of  the  legal  remedy,  as  for  the  prevention  of  a 
multiplicity  of  suits.^*^  And  the  relief  has  been  allowed  in 
such  case  even  though  the  defendant  was  not  insolvent.^^ 
And  the  discharge  of  freight  by  a  steamboat  at  a  private 
Avharf  owned  by  plaintiff,  to  the  constant  and  serious  in- 
terruption of  his  business,  will  warrant  an  injunction  under 
a  statute  authorizing  the  relief  when  an  injury  to  real  or  per- 
sonal property  is  threatened  which,  in  the  opinion  of  the 
court,  can  not  be  adequately  remedied  by  an  action  for  dam- 
ages.^- And  the  destruction  of  a  mill-dam  which  operates 
planitiff's  mill  may  be  enjoined,  defendant  being  insolvent 
and  unable  to  respond  in  damages.^^  So  the  construction 
of  a  tunnel  through  plaintiff's  premises  is  a  trespass  of  so 
irreparable  a  nature  as  to  justify  the  granting  of  an  injunc- 
tion.^-* And  where  plaintiff  is  lawfully  in  possession  of  and 
entitled  to  use  a  wharf  upon  a  navigable  water  and  in  con- 

48  Lembeck  v.  Nye,   47   Ohio  St.,  So.,  652;   Northern  Pac.  Ry.  Co.  v. 

336,  24  N.  E.,  686,  8  L.  R.  A.,  578,  Cunningham,  103  Fed.,  708. 

21  Am.   St.  Rep.,  828;    Providence,  so  Owens  v.  Crossett,  105  111.,  354. 

F.  R.  &  N.   S.  Co.  r.   City  of  Fall  And  see  Ladd  v.  Osborne,  79  Iowa, 

River,  183  Mass.,  535,  67  N.E.,647,  93,  44  N.  W.,  235. 

McClellan  v.  Taylor,  54  S.  C,  430,  si  Pohlman    r.    Evangelical 

32   S.  E.,  527.  Church,  60  Neb.,  364,  83  N.  W.,  201. 

4»  Lewis  V.  Town  of  North  Kings-  S2  Turney  v.  Stewart,  78  Mo.,  480. 

town,  16  R.  I.,  15,  11  Atl.,  173,  27  S3  Sword  v.  Allen,  25  Kan.,  67. 

Am.  St.  Rep.,  724;   Miller  v.  Wills,  S4  Richards  v.  Dower,  64  Cal.,  62. 

95  Va.,  337,  28  S.  E.,  337;   Hooper  28   Pac,   113. 
i).  Dora  C.  M.  Co.,  95  Ala.,  235,  10 


CHAP.  XII.]  AGAINST  TRESPASS.  673 

nection  with  and  as  appurtenant  thereto  to  use  certain  rnoor^ 
ing's,  buoys  and  anchors,  their  unauthorized  removal  by  de- 
fendants constitutes  such  an  irreparable  injury  as  to  war- 
rant an  injunction,  even  though  defendants  are  not  shown 
to  be  insolvent.^^*  So  defendant  will  be  enjoined  from  en- 
tering upon  a  public  highway  and  preventing  plaintiff  from 
carrying  on  the  work  of  paving  which  he  is  engaged  in  do- 
ing under  a  contract  with  the  city,  where  the  trespass  is 
constantly  repeated  and  would  subject  the  plaintiff  to  a  mul- 
tiplicity of  suits  at  law  for  redress.^*^  And  where  the  defend- 
ant has  frequently  trespassed  upon  plaintiff's  land  and  has 
served  upon  him  a  written  notice  of  his  intention  to  continue 
the  trespassing  as  often  as  the  plaintiff  seeks  to  assert  his 
rights,  an  injunction  is  properly  granted  owing  to  the  in- 
adequacy of  the  remedy  at  law.^'^  So  a  railway  company 
may  have  an  injunction  to  restrain  hackmen  from  continually 
entering  its  depot  against  its  will  for  the  purpose  of  solicit- 
ing the  patronage  of  its  passengers.^^  And  one  railroad  may 
enjoin  another  from  continually  running  its  engines  and  cars 
upon  plaintiff's  tracks  without  any  right  so  to  do.-''^  And 
an  injunction  will  issue  to  restrain  defendants  from  constantly 
entering  upon  a  game  preserve  owned  by  the  plaintiff'  and 
killing  the  game,  thereby  destroying  the  value  of  the  land  for 
the  purposes  for  which  plaintiff  is  using  it.*^*^  And  where 
plaintiff'  is  in  lawful  possession  of  a  tract  of  land  under  a 
lease  from  the  owner,  in  which  he  had  sunk  a  natural  gas 
well  from  which  he  is  taking  gas,  the  unauthorized  digging 

55  Crescent  City  W.  &  L.  Co.  v.     N.    H.   &  H.    R.   Co.   v.    Scovill,   71 
Simpson,  77  Cal.,  286,  19  Pac,  426.     Conn.,  136,   41   Atl.,  ^46,   42   L.   R. 

56  Palmer  v.  Israel,  13  Mont.,  209,     A.,  157,  71  Am.  St.  Rep.,  159. 

33  Pac,  134.  so  Lake  Shore  &  M.  S.  R.  Co.  v. 

■'••■  Edwards  v.   Haeger,    180     111.,  Felton,  43  C.  C.  A.,  189,  103  Fed., 

99,  54  N.  E.,  176.  227. 

ns  Boston   &   M.    R.   Co.   r.    Sulli-  eo  Kellogg  r.  King,  114  Cal.,  378. 

van,  177  Mass.,  230,  58  N.  E.,  689,  46  Pac,  166,  55  Am.  St.  Rep.,  74, 
83  Am.  St.   Rep.,   275;    New  York, 

43 


674  INJUNCTIONS.  [chap.  XII. 

of  a  well  by  the  defendant  in  such  close  proximity  as  to 
diminish  the  flow  of  gas  from  the  plaintiff's  well  will  be 
enjoined  owing  to  the  impossibility  of  determining  with  any 
degree  of  accuracy  the  damages  which  will  result  to  the  plain- 
tiff.61 

§  703.  Interference  with  burial  ground.  In  conformity 
with  the  general  principle  that  an  act  of  trespass  for  which 
it  is  impossible  to  give  an  adequate  remedy  by  damages  at 
law  may  be  enjoined  in  equity,  it  is  held  that  where  land 
has  for  many  years  been  held  and  used  by  the  owner  as  a 
family  burial  ground,  defendants  may  be  enjoined  from  en- 
croaching thereon  and  from  a  threatened  removal  of  the  re- 
mains of  persons  interred  therein.  And  in  such  case,  the 
right  to  equitable  relief  is  based  upon  the  fact  that  there 
can  be  no  standard  by  which  to  estimate  the  damages  sus- 
tained, since  the  extent  of  the  injury  is  dependent  upon  the 
feelings  of  the  persons  aggrieved,  and  upon  their  peculiar 
views  of  the  sacredness  of  the  ground  in  question.'^-  So  the 
invasion  or  appropriation,  without  authority,  of  lands  owned 

Gi  Indianapolis  N.  G.  Co.  v.  Kib-  them    to    remove    the    remains    of 

bey,  135  Ind.,  357,  35  N.  E.  392.  their    dead    relatives    and    friends, 

«-  Mooney  v.  Cooledge,  30  Ark.,  and  were  threatening  to  do  so.  For 
640.  Mr.  Justice  Walker  observes,  such  an  injury  as  this  there  could 
p.  642,  as  follows:  "The  plaintiffs  be  no  standard  by  which  to  esti- 
allege  that  this  acre  of  land  was,  mate  the  damages  sustained.  The 
and  for  many  years  has  been  the  extent  of  the  injury  to  be  inflicted 
property  of  their  ancestor,  and  had  must  depend  upon  the  sympathies 
all  the  while  been  claimed  and  and  feelings  of  the  parties  injured, 
used  as  a  family  burial  ground;  and  their  peculiar  views  as  to  the 
that  many  of  their  near  relatives  sacredness  of  the  spot  where  the 
arid  esteemed  friends  were  buried  remains  rest.  Whilst  it  might  be 
there;  that  defendants,  the  own-  a  matter  of  little  moment  to  some, 
ers  of  Evergreen  Cemetery,  have  it  might  inflict  an  irreparable  in- 
extended  the  cemetery  upon  this  jury  to  others,  which  money  could 
land,  fenced  it  in,  laid  off  part  of  not  compensate.  Under  the  state 
the  land  upon  which  their  dead  of  case  presented,  we  hold  that  the 
relatives  and  friends  have  been  suit  was  properly  brought  in  a 
buried  as  an  addition  to  the  said  court  of  equity." 
cemetery;     had     given     notice     to 


CHAP.  XII.]  AGAINST   TRESPASS.  675 

by  the  trustees  of  a  religious  organization  and  used  by  them 
for  burial  purposes,  and  the  attempt  to  take  such  property 
from  the  owners  without  authority,  and  to  devote  it  to 
another  purpose,  constitute  an  injury  of  such  an  irreparable 
nature  as  to  justify  the  interposition  of  equity  by  injunc- 
tion.^'3  And  where  land  was  dedicated  by  a  former  owner 
for  use  as  a  burial  ground,  and  has  been  so  used  for  many 
years,  a  subsequent  owner  of  the  premises  may  be  enjoined 
from  interfering  with  their  use  for  burial  purposes  at  the 
suit  of  residents  of  the  neighborhood  having  friends  buried 
there,  plaintiffs  suing  for  themselves  and  for  all  others  hav- 
ing a  like  interest.*"^^  So  where  a  father  buried  the  remains 
of  his  deceased  son  in  his  own  lot  in  a  cemetery,  with  the 
full  approval  and  consent  of  the  widow  of  the  deceased,  the 
widow  was  enjoined  from  removing  the  remains  to  another 
place   for   burial.*^-'' 

§704.  Encroachments  upon  adjacent  land;  projecting 
buildings.  Perhaps  no  cases  where  preventive  relief  by  in- 
junction has  been  allowed  against  the  commission  of  tres- 
passes better  illustrate  the  nature  and  grounds  of  the  juris- 
diction, than  those  in  which  the  aid  of  equity  is  invoked 
to  prevent  an  encroachment  upon  complainant's  soil  by  ex- 
cavating on  the  part  of  an  adjacent  owner,  or  by  the  de- 
struction of  complainant's  wall  in  building  operations  upon 
adjacent  premises;  and  the  right  to  relief  in  this  class  of 
cases  is  well  established.^^  For  example,  where  complainant 
and  those  under  whom  he  claims  have  been  for  many  years 
in  possession  of  lands,  and  defendant,  an  adjacent  lot  owner, 
has  pulled  down  the  division  fence,  and  is  proceeding  to  ex- 
es Beatty  V.  Kurtz,  2  Pet,  566;  son,  22  La.  An.,  512;  Tribune  As- 
Trustees  v.  Walsh,  57  111.,  363.  sociation  v.  The  Sun,  7  Hun,  175. 

64  Davidson  r.  Reed,  111  111.,  167.     See  also  Hunt  v.  Peake,  John  Eng. 

65  Peters  v.  Peters,  43  N.  J.,  Eq.,     Ch.,  705;    Chicago,  B.  &  Q.  R.  Co. 
140,  10  Atl.,  742,  V.  Porter,  72  Iowa,  426,  34  N.  W., 

66  Southmayd    v.    McLaughlin,   9     286;   Gobeille  «.  Meunier,  21  R.  I,, 
C.  E.  Green,  181;  Marion  v.  John-    103,  41  Atl.,  1001. 


67ti  INJUNCTIONS.  [chap.  XII. 

cavate  the  soil  of  complainant's  land  for  the  purpose  of  erect- 
ing a  building  partly  upon  his  premises,  a  fitting  case  is  pre- 
sented for  relief  by  injunction,  the  injury  going  to  the  de- 
struction of  the  inheritance.^^  So  when  defendants,  in  erect- 
ing a  building  upon  a  lot  adjoining  the  premises  of  complain- 
ants, are  removing  bricks  from  the  wall  of  their  building,  to 
its  great  injury  and  detriment,  the  act,  although  a  trespass, 
is  of  such  an  irreparable  character,  as  to  warrant  an  injunc- 
tion.^^ And  the  relief  may  be  granted  against  a  public  officer, 
such  as  a  building  inspector  of  a  city,  who  is  proceeding  in 
excess  of  his  authority  to  the  commission  of  an  irreparable 
injury,  as  by  tearing  down  the  wall  of  a  building,  when  the 
injury  thereby  sustained  can  not  be  adequately  measured  or 
estimated  in  damages.*^^  So,  too,  where  the  trespass  consists 
in  removing  earth  and  stones  from  a  bank  belonging  to  com- 
plainant, and  which  protects  his  lands  from  inundations  and 
irruptions  of  the  sea,  he  having  already  obtained  a  verdict 
at  law  for  the  same  trespass,  an  injunction  may  be  allowed.'^*^ 
And  where  defendant  threatens  to  tear  down  and  remove  a 
portion  of  complainant's  dwelling,  which  he  alleges  is  built 
upon  his  own  laud,  the  threatened  injury  is  so  irreparable  in 
its  nature  as  to  justify  relief  by  injunction.'^^  And  upon 
similar  principles,  where  defendant's  building,  or  its  founda- 
tions, or  such  parts  of  it  as  windows,  cornices  and  the  like, 
project  upon  or  over  the  adjoining  land  owned  by  the  plain- 
tiff, a  mandatory  injunction  is  properly  granted  to  compel 
the   removal  of  such   projecting  parts.'-    And   where   the   en- 

07  Southmayd    v.    McLaughlin,    9  nam,   75  Conn.,  662,   55  Atl.,   168; 

C.  E.  Green,  181.  Wilmarth   v.   Woodcock,   66   Mich., 

'i>*  Marion  /;.  Johnson,  22  La.  An.,  331,  33  N.  W.,  400;   Harrington  r. 

512.  McCarthy,  169  Mass.,  492,  48  N.  E., 

00  Tribune     Association    v.     The  278;    Hodgkins  r.  Farrington,    150 

Sun,  7  Hun.  175.  Mass.,    19,    22    N.    E.,    73,   5    L.    R. 

70  Chalk  V.  Wyatt,  3  Meriv.,  688.  A.,    209;    Pile   t'.    Pedrick,    167   Pa. 

71  De  Veney  r.   Gallagher,    5    C.  St.,   296,  31   Atl.,  646,  647,  46  Am. 
E.  Green,  33.  St.   Rep.,   677;    Norton    v.    Elwert, 

7aNorwalk    H.   &   L.   Co.  v.  Ver-     29  Ore.,  583,  41  Pac,  926;  Gobeille 


CHAP.  XII.]  AGAINST   TKESPASS.  677 

croachment  consists  of  a  projection  above  the  land  as  dis- 
tinguished from  one  which  is  upon  it,  the  remedy  by  eject- 
ment can  have  no  application  since  there  is  no  interference 
with  the  plaintiff's  possession  so  far  as  the  land  itself  is  con- 
cerned.'^^ But  where  an  occasional  stone  of  the  defendant's 
foundation  wall  projects  a  short  distance  into  plaintiff's  land 
below  the  ground,  and  the  defendant,  in  building  the  wall, 
has  endeavored  to  prevent  such  an  encroachment,  so  that  the 
trespass  is  unintentional  and  very  slight,  and  where  the  de- 
fendant has  offered  to  pay  any  sum  which  the  plaintiff  may 
claim,  it  further  appearing  that  no  appreciable  damage  re- 
sults to  the  plaintiff,  the  court  may  properly  deny  injunctive 
relief  and  leave  the  plaintiff  to  his  remedy  at  law.''^^ 

§  705.  Limitations  upon  the  doctrine'.  It  is,  however,  im- 
portant to  observe  that  to  warrant  a  court  of  equity  in  grant- 
ing an  injunction  at  the  suit  of  the  owner  of  realty  to  pre- 
vent an  adjacent  owner  from  improving  his  premises  by  ex- 
cavating up  to  the  line  of  complainants,  a  clear  case  of  dam- 
age, actual  or  inevitable,  should  be  made  to  appear.  Where, 
therefore,  it  is  not  shown  that  complainant's  soil  has  been 
displaced,  or  that  it  will  necessarily  be  damaged  by  making 
the  improvement,  equity  will  not  interfere.'^'''  And  when  it 
is  sought  to  restrain  defendant  from  tearing  down  one  of  the 
walls  of  complainant's  house  standing  upon  a  strip  of  ground, 
the  title  to  which  is  in  dispute,  and  complainant  fails  to 
show  any  title  whatever  to  the  disputed  ground,  he  is  not 
'  entitled  to  preventive  relief  by  injunction  against  the  alleged 
trespass.*^^ 

V.   Meunier,   21  R.   I.,  103,  41  All.,  '-^  Wilmarth     w.     Woodcock,     66 

1001.     In  Long   v.   Ragan,  94  Md  ,  Mich.,  331,  33  N.  W.,  400. 

462,    51    Atl.,    181,   the     injunction  "+  Harrington    v.   McCarthy,     169 

was  not  mandatory  hut  merely  re-  Mass.,  492,  48  N.  E.,  278. 

strained   the   defendant  from    fur-  '■'  Morrison   v.    Latimer,   51    Ga., 

ther  proceeding  with  the  erection  519;    McMaugh  r.  Burke,  12  R.  I., 

of     his    building    upon    plaintiff's  499. 

land.  ■•'■  Hiss  c.  McCabe,  45  Md.,  77. 


678  INJUNCTIONS.  [chap.  XII. 

§  706.  Erection  of  wooden  fence ;  ditch  out  of  repair ;  mud 
and  earth.  The  erection  of  a  wooden  fence  on  part  of  com- 
plainant's premises  is  not  productive  of  such  serious  conse- 
quences as  to  warrant  an  injunction.'^"  Nor  will  the  court 
interfere  where  the  act  complained  of  consists  in  permit- 
ting a  ditch  to  remain  out  of  repair,  whereby  water  perco- 
lates through  the  bank  and  floods  complainant's  meadow, 
since  ample  remedy  may  be  had  at  law.'''^  And  upon  the 
same  principle  the  throwing  up  of  mud  and  earth  on  com- 
plainant's land  will  not  be  enjoined.'^^  But  the  destruction 
of  a  hedge  fence  upon  plaintiff's  premises  has  been  held 
sufficient    ground    for    an    injunction.^^ 

§  707.  Complete  and  incomplete  erections ;  fraudulent  and 
oppressive  conduct.  Where  the  trespass  complained  of  con- 
sists in  the  erection  of  buildings  upon  complainant's  land,  a 
distinction  is  taken  between  the  buildings  when  in  an  incom- 
plete and  when  in  a  finished  state.  And  while  the  jurisdic- 
tion is  freely  exercised  before  the  completion  of  the  struc- 
tures,^^ yet  if  they  have  been  completed  the  relief  will  gen- 
erally be  withheld,  and  the  person  aggrieved  will  be  left 
to  his  remedy  by  ejectment.^-  But  if  the  conduct  of  defend- 
ants in  the  construction  of  the  obnoxious  works  has  been 
fraudulent  and  oppressive,  causing  serious  injury  to  com- 
plainants and  preventing  their  enjoyment  of  their  property 
in  its  original  condition,  equity  ma}^  interpose.^^  So  an  in- 
junction has  been  granted  to  prevent  the  illegal  removal  of 

-T  Herr  r.  Bierbower,  3  Md.  Ch.,  602;    Long  r.  Ragan,  94   Md.,  462, 

45G.  51  Atl.,  181;  Baron  r.  Korn,  127  N. 

7s  Carlisle    v.  Stevenson,    3    Md.  Y.,  224,  27  N.  E.,  804. 

Ch.,  499.  **-  Deere  v.  Guest,   1   Myl.  &  Cr., 

T!>  Mulvany    v.    Kennedy,    26    Pa.  516;    Moreland    r.    Richardson,     22 

St.,  44.  Beav.,  604. 

»«•  Sapp  r.  Roberts,  18  Neb.,  299,  s^' Powell   r.   Aiken,   4  Kay  &  J., 

25  N.  W.,  96.  343;   Bowser  v.  Maclean,  2  DeGex, 

81  Farrow  v.  Vansittart,  1  Rail.  C,  F.  &  J.,  415. 


■CHAP.  XII.]  AGAINST  TRESPASS.  679 

a  school  house   and  the   assuming  control   over   a   portion   of 
the  school  territory,  the  remedy  at  law  being  inadequate.^* 

§  708.  When  injunction  made  mandatory.  Although  the 
jurisdiction  of  equity  by  mandatory  injunction  to  compel  the 
restoration  of  matters  in  statu  quo  is  sparingly  exercised, 
since,  if  the  trespass  consists  in  the  erection  of  structures, 
the  remedy  by  ejectment  is  plain,^^  yet  a  trespass  irreparable 
in  its  character  and  of  a  continuing  nature  may  be  restrained 
by  a  mandatory  injunction,  thus  restoring  things  to  their 
original  condition.^^  Thus,  health  officers  have  been  re- 
strained by  mandatory  injunction  from  allowing  a  sewer  to 
remain  open.^"  And  the  manager  of  a  business  has  been  en- 
joined from  excluding  the  owner  of  the  business  from  the 
premises.^'-  So,  too,  a  mandatory  injunction  has  been  granted 
to  prevent  defendant  from  allowing  a  building  to  remain  on 
the  roof  of  the  complainant's  house  which  he  had  erected 
tliere.^^  But  the  relief  will  not  be  allowed  to  compel  the 
rebuilding  of  a  wall  which  has  been  overthrown,  the  rem- 
edy being  deemed  ample  at  law.^^  And  where  defendant 
has  been  in  possession  of  the  locus  in  quo  for  a  period  of 
six  years,  and  the  title  is  in  controversy  between  the  par- 
s'* District  Township  of  Lodomil-  kins  v.  Farrington,  150  Mass.,  19, 
lo  V.  District  Township  of  Cass,  54  22  N.  E.,  73,  5  L.  R.  A.,  209;  Pile 
Iowa,  115,  6  N.  W.,  163.  v.  Pedrick,  167  Pa.  St.,  296,  31  Atl., 

85  Deere  v.  Guest,  1  Myl.  &  Cr.,  646,  647,  46  Am.  St.  Rep.,  677; 
516;  Moreland  v.  Richardson,  22  Norton  v.  Elwert,  29  Ore.,  583,  41 
Beav.,   604.  Pac,  926;    Gobeille  v.  Meiinier,   21 

86  Martyr  v.  Lawrence.  2  DeGex,  R.  I.,  103,  41  Atl.,  1001;  Henderson 
J.  &  S.,  261;  Robinson  v.  Byron,  r.  Ogden  C.  R.  Co.,  7  Utah,  199,  26 
1  Bro.  C.  C,  588;    Great  R.  Co.  v.     Pac,  1119. 

Clarence  R.  Co.,  1  Coll.,  507;  Pow-  87  Manchester  R.  Co.  v.  Worksop 

ell  r.  Aiken,  4  Kay  &  J.,  343;  Nor-  Board  of  Health,  23  Beav.,  209. 

walk    H.   &  L.   Co.    r.   Vernam,  75  ss  Eachus  v.  Moss,  14  W.  R.,  327. 

Conn.,  662,  55  Atl.,  168;  Wilmarth  sa  Martyr  v.  Lawrence,  3  DeGex, 

V.  Woodcock,  66   Mich.,  331,  33  N.  J.  &  S.,  261. 

W.,  400;    Harrington  v.  McCarthy,  so  Doran    r.    Carroll,    11    Ir.    Ch., 

169  Mass.,  492,  48  N.E.,278;  Hodg-  379. 


680  INJUNCTIONS.  [chap.  XII. 

ties,    equity    will    decline    to    interfere   by   mandatory    injunc- 
tion.91 

§709.  Pulling  down  buildings;  taking  stone  from  quarry. 
A  lease  containing  covenants  to  repair,  and  at  the  end  of 
the  term  to  surrender  the  buildings  in  good  condition,  con- 
stitutes no  bar  to  an  injunction  against  pulling  down  the 
buildings  and  removing  the  materials  immediately  before  the 
expiration  of  the  term.^^  And  an  injunction  and  account  will 
be  allowed  against  a  trespass  consisting  in  defendant's  ex- 
ceeding a  limited  right  which  he  holds  of  taking  stone  from 
complainant's  quarry,  such  a  trespass  being  regarded  as  one 
which  goes  to  the  destruction  of  the  inheritance.^^ 

§  710.  Erection  of  piers  by  foreign  corporations  enjoined. 
A  foreign  corporation  may  be  restrained  from  taking  pos- 
session of  the  land  under  water  in  a  harbor  over  which  a 
state  has  jurisdiction,  and  from  erecting  piers  and  docks 
thereon,  the  injury  being  such  as  to  warrant  a  court  of 
equity  in  interfering  in  behalf  of  the  people.^* 

§711.  Extinguishment  of  interest  in  common.  Where  one's 
interest  in  a  common  has  become  extinguished,  he  will  not 
be  allowed  to  become  a  trespasser  upon  the  rights  of  others 
in  the  common,  and  an  injunction  may  issue  to  prevent  him 
from  so  doing.^^ 

§  712.  Injunction  not  granted  in  case  of  forcible  entry  and 
detainer.  An  injunction  being  a  preventive  remedy,  and  not 
used  to  compel  the  undoing  of  what  has  already  been  done, 
it  will  not  be  granted  in  a  simple  case  of  trespass  by  forcible 
entry  and  detainer,  the  remedy  at  law  being  regarded  as 
fully  adequate  to  such  a  case.^^ 

§713.  Remedy  at  law;  erection  of  trestle  work;  taking 
stone    from    ledge.      Equity    Avill    not    depart    from    the    well 

»i  Gaunt  r.  Fynney,  L.  R.  8  Ch.,  ^>*  People  v.  Central  R.  R.,  48 
8.  Barb.,  478. 

02  Mayor  v.  Hedger,  18  Ves.,  355.         oc  Bell  v.  Ohio  &  P.  R.  Co.,  25  Pa. 
»•■»  Thomas  v.  Oakley,  18  Ves.,  184.     St.,  161. 

88  Wangelin  v.  Goe,  50  111.,  459. 


CHAP.  XII.]  AGAINST   TRESPASS.  681 

settled  rule  of  leaving  the  parties  to  their  remedy  at  law  for 
acts  of  trespass  committed  on  lands,  unless  there  are  some 
special  circumstances  set  up  in  the  bill,  and  Avhere  it  is  not 
shown  that  the  remedy  at  law  is  inadequate.-''^  And  the 
erection  of  a  trestle  work  of  a  railway  in  a  public  street  is 
not  such  a  trespass  as  will  authorize  an  injunction,  Avhere 
the  erection  is  capable  of  being  readily  removed.'^s  So  the 
taking  of  stone  from  a  ledge  on  complainant's  premises,  being 
susceptible  of  pecuniary  compensation,  and  not  being  shown 
to  be  destructive  of  the  estate,  will  not  be  enjoined.''''  But 
the  owner  of  lands  over  which  a  highway  is  being  con- 
structed may  restrain  the  digging  of  pits  in  the  line  of  the 
highway  below^  the  proposed  grade,  and  the  removal  of  gravel 
therefrom  with  which  to  cover  the  road^vay  upon  lands  not 
owned  by  plaintiff.^ 

§  714.  Interference  with  church  property ;  when  injunction 
perpetuated.  Trustees  of  a  church  may  enjoin  pretended 
trustees  from  intermeddling  with  the  church  property  where 

07  Wilson     V.     Hughell,     Morris  the    cognizance  of    equity,  and  by 

(Iowa),  461.  calling   forth,  upon   all    occasions, 

98  Schurmeier  v.  St.  Paul  &  P.  R.  its  power  to  punish  by  attachment, 
Co.,  8  Minn.,  113.  fine  and  imprisonment,  for  a  fur- 

99  Jerome  v.  Ross,  7  Johns.  Ch.,  ther  commission  of  trespass,  in- 
315.  In  this  case  canal  commis-  stead  of  the  more  gentle  common 
sioners  being  authorized  by  statute  law  remedy  by  action  and  the  as- 
to  enter  upon  any  lands  contiguous  sessment  of  damages  by  a  jury, 
to  the  canals,  and  to  dig  for  stone  In  ordinary  cases  this  latter  rem- 
and other  materials  necessary  for  edy  has  been  found  amply  sufficient 
the  prosecution  of  their  work,  dug  for  the  protection  of  property; 
up  and  removed  stone  from  a  ledge  and  I  do  not  think  it  advisable, 
of  rock  on  complainant's  premises,  upon  any  principle  of  justice  or 
who  thereupon  filed  a  bill  for  an  policy,  to  introduce  the  chancery 
injunction.  Kent,  Chancellor,  in  remedy  as  its  substitute,  except  in 
finally  disposing  of  the  case,  says:  strong  and  aggravated  instances 
"The  objection  to  the  injunction,  of  trespass,  which  go  to  the  de- 
in  cases  of  private  trespass,  except  struction  of  the  inheritance,  or 
under  very  special  circumstances,  where  the  mischief  is  remediless." 
is,  that  it  would  be  productive  of  i  Robert  v.  Sadler,  104  N.  Y., 
public    inconvenience,   by    drawing  229,  10  N.  E.,  428. 

cases    of    ordinary  trespass  within 


682 


INJUNCTIONS. 


[CHAr.  XII. 


the  trespass  goes  to  the  destruction  of  the  property  in  the 
character  in  which  it  was  enjoyed.^  And  upon  satisfactorily 
establishing  the  legal  right  and  its  violation  a  perpetual  injunc- 
tion may  be  awarded  against  a  trespass.-^ 

§715.  Interference  with  possession;  trespass  ripening  into 
nuisance.  Equity  will  not  restrain  interference  with  com- 
plainant's possession  of  his  premises  when  the  indirect  effect 
of  the  injunction  would  be  to  reinstate  complainant  in  pos- 
session, the  remedy  at  law  being  ample.'*  But  a  trespass 
w^hich,  from  its  long  continuance,  has  grown  into  a  nuisance, 
may  be  enjoined  to  prevent  multiplicity  of  suits.^ 

2  Trustees   v.   Hoessli,    13    Wis.,    to  the  destruction  of  it  in  ttie  char- 


348.  Complainants,  being  trustees 
of  an  incorporated  religious  socie- 
ty, asked  a  perpetual  injunction 
against  certain  parties  pretending 
to  be  trustees  to  restrain  them 
from  intermeddling  with  the 
church  property.  It  was  held  on 
demurrer  that  the  action  was  prop- 
erly brought  by  the  trustees  in 
their  official  capacity  and  not  in 
the  name  of  the  state;  also  that 
a  sufficient  cause  of  action  was 
shown  to  warrant  the  interference 
of  a  court  of  equity.  Cole,  J.,  ob- 
serves: "The  general  rule  un- 
doubtedly is,  that  in  cases  of  pri- 
vate trespass  an  injunction  would 
not  be  granted,  for  the  reason  that 
the  aggrieved  party  has  an  ade- 
quate common  law  remedy  by  ac- 
tion where  proper  damages  could 
be  assessed  by  a  jury.  In  ordinary 
cases  this  was  found  to  be  suffi- 
cient for  the  protection  of  prop- 
erty. 'But  in  cases  of  a  peculiar 
nature,  where  the  mischief  was  ir- 
remediable, which  damages  could 
not  compensate,  or  where  the  in- 
jury reached  to  the  very  substance 
and  value  of  the  estate,  and  went 


acter  in  which  it  was  enjoyed,' 
then  courts  of  equity  would  grant 
an  injunction  to  prevent  the  injury 
complained  of.  Beatty  v.  Kurtz, 
2  Peters,  566;  Jerome  v.  Ross,  7 
Johns.  Ch.,  315;  Varick  v.  Mayor, 
4  lb.,  53.  Now  it  must  be  admit- 
ted that  the  circumstances  of  this 
case  are  so  special,  the  nature  and 
use  of  the  property  itself  are  so 
peculiar,  that  an  ordinary  action  of 
trespass  would  furnish  no  adequate 
compensation  for  an  injury  to  the 
possession.  For  would  any  mere 
pecuniary  damages  furnish  any 
compensation  to  a  religious  society 
for  repeated  and  constant  acts  of 
trespass  upon  its  property  and 
temporalities?  Most  clearly  not. 
The  entire  value  of  such  property 
consists  in  its  free  and  undisturbed 
use  and  enjoyment  for  religious 
worship." 

■■i  McLaughlin  v.  Kelly,  22  Cal., 
211;  Lowndes  r.  Bettle,  33  L.  J. 
Ch.,   451. 

•Akrill    r.  Selden,  1    Barb.,   316. 

T' Mitchell  r.  Dors,  6  Ves.,  147; 
Hanson    r.   Gardiner,  7   Ves.,  305. 


CHAP.  XII.]  AGAINST  TRESPASS.  683 

§716.  Removal  of  asphaltum;  landing-  of  passengers;  dis- 
solution of  injunction.  The  removal  of  asphaltum  from  com- 
plainant's land,  thus  depriving  him  of  a  part  of  his  inherit- 
ance, which  can  not  be  replaced,  affords  ground  for  an  in- 
junction.*^ And  upon  similar  grounds  the  relief  may  be 
granted  to  prevent  the  removal  of  earth  from  plaintiff's  prem- 
ises for  the  manufacture  of  brick.'''  But  the  landing  of  pas- 
sengers from  a  steamboat  at  complainant's  dock  does  not 
constitute  an  injury  so  irreparable  as  to  call  for  relief  in 
equity.^  And  an  injunction  granted  against  waste  will  be 
regarded  as  a  mere  injunction  against  trespass,  on  answer 
showing  no  privity  of  title,  and  the  equity  of  the  bill  being 
denied,  a  dissolution  follows  as  of  course.*-^ 

§717.  Insolvency;  continuing-  act.  Insolvency  of  the  tres- 
passer affords  additional  ground  for  the  interference,  since 
his  inability  to  respond  in  damages  renders  the  remedy  at 
law  ineft'ectual.^*^  And  an  act  which,  in  itself,  might  not. 
result  in  serious  damage,  may,  from  its  continuance,  consti- 
tute a  trespass  resulting  in  irreparable  injury.^^  And  where 
the  trespass  consists  of  continuous  and  repeated  acts,  which 
can  be  redressed  at  law  only  by  a  multiplicity  of  suits,  an 
injunction  may  be  granted.^-  But  a  trespass  w^ill  not  be  en- 
joined solely  upon  the  ground  of  the  insolvency  of  the  tres- 
passer, when  it  does  not  appear  that  adequate  relief  may  not  be 
had  by  an  action  for  damages.^ -^ 

§  718.  When  plaintiff  left  to  remedy  at  law.  When  plain- 
tiff' is  permitted  to  maintain  an  action  at  law  for  trespasses 

6  More  V.  Massini,  32  Cal.,  590.  787;    Hanly  v.  Watterson,  39  West 

7  Bates  V.  Slade,  76  Ga.,  50.  Va.,  214,  19  S.  E.,'  536. 

8  New  York  P.  &  D.  Establish-  n  Hopkins  c.  Chaddick,  18  L.  T., 
ment  v.  Fitch,  1  Paige,  97.  236. 

9  Stewart  v.  Chew,  3  Bland,  440.  ^-  Mills  v.  New  Orleans  Seed  Co., 

10  Musselman  v.  Marquis,  1  65  Miss.,  391,  4  So.,  298.  And  see. 
Bush,   463;    Milan    Steam   Mills   v.     ante,  §  697. 

Hickey,  59  N.  H.,  241 ;  Long  v.  is  Mechanics  Foundry  of  San 
Kasebeer,  28  Kan.,  226;  Champ  v.  Francisco  v.  Ryall,  75  Cal.,  601,  17i 
Kendrick,  130   Ind.,  549,  30  N.   E.,     Pac,  703.    And  see,  ante,  §  18. 


684  INJUNCTIONS.  [chap.  xit. 

committed  upon  land  from  which  he  has  been  disseized  and 
of  which  defendant  is  in  the  adverse  possession,  a  court  of 
equity  will  not  interfere  by  injunction  to  prevent  the  com- 
mission of  threatened  trespasses,  but  will  leave  the  party  ag- 
grieved to  pursue  his  remedy  at  law.^-* 

§  719.  Distinction  between  articles  of  necessity  and  of  lux- 
ury. A  distinction  has  been  taken  between  trespasses  con- 
sisting in  the  removal  of  such  articles  from  one's  premises 
as  are  necessary  to  their  enjoyment,  and  such  as  are  merely 
articles  of  convenience  or  luxury ;  and  while  in  the  former 
case  the  injury  would  prove  irreparable,  and  the  injunction 
is  therefore  granted,^  ■'"'  in  the  latter,  the  articles  being  merely 
articles  of  convenience,  ample  remedy  may  be  had  at  law  for 
their  removal,  and  equity  will  not  interfere.^  ^ 

§  720.  When  discretion  of  inferior  court  not  interfered 
with.  It  is  held  that  an  appellate  court  will  not  control  the 
discretion  of  an  inferior  court  in  refusing  to  grant  an  in- 
terlocutory injunction  to  restrain  the  commission  of  a  tres- 
pass, when  defendants  in  the  action  are  fully  able  to  respond 
in  damages  upon  the  final  hearing  of  the  cause.^''' 

§  721.  When  interlocutory  injunction  retained  to  the  hear- 
ing. When  the  threatened  trespass  would  inflict  great  and 
irreparable  injury  upon  complainant's  property  and  is  of 
such  a  character  as  equity  may  properly  enjoin,  the  bill  de- 
nying defendant's  right,  and  defendant  by  his  answer  show- 
ing such  circumstances  of  acquiescence  on  his  part  as  to 
render  his  assertion  of  the  right  inequitable,  the  preliminary 
injunction  may  properly  be  retained  until  the  final  hearing.' ^ 
So  when  complainant  claimed  the  exclusive  right  to  take 
oysters   from    a   pai-ticular   part   of   a    bay,   which   had    been 

i4Felton  V.  Justice,  51  Cal.,  529;  it  Summerville  Co.   v.    The    Au- 

Taylor  /;.  Clark.  89  Fed.,  7.  gusta  Co.,  56  Ga  .  527. 

1'- Witmer'.s    Appeal,    45    Pa.    St.,  i«. Johnston     r.     Hyde,    10    C.    E. 

455.  Green,  454. 

i«  Clark's  Appfal,  tIL'  Pa.  St..  447. 


CHAP.  XI].]  AGAINST  TEESPASS.  685 

planted,  staked  off  and  claimed  by  bini  exclusively,  an  in- 
junction restraining  defendants  from  taking  oysters  there- 
from was  regarded  as  proper  to  be  continued  until  the  hear- 
ing, when  the  question  of  right  could  be  finally  determined, 
most  of  the  defendants  being  insolvent.^'*  And  it  has  been 
held  where  a  preliminary  injunction  is  granted  against  a 
trespass  of  an  irreparable  nature,  and  the  effect  of  dissolv- 
ing it  would  be  to  change  the  possession  of  real  property, 
tliat  it  should  be  retained  until  the  hearing.-^ 

§  722.  Requisites  of  bill ;  damages  awarded  in  same  action. 
When  relief  is  sought  by  injunction  against  the  commis- 
sion of  a  threatened  trespass,  it  is  not  sufficient  that  the 
bill  contains  mere  general  averments  of  irreparable  mis- 
chief, but  the  facts  constituting  such  mischief  should  be  set 
forth.-^  And  in  the  absence  of  any  allegations  that  the  tres- 
pass is  a  continuing  one,  or  is  likely  to  be  continued,  the  in- 
junction will  be  withheld.--  But  it  is  a  sufficient  setting 
forth  of  complainant's  title  if  he  alleges  himself  to  be 
the  owner  in  fee  simple  by  purchase  and  to  be  in  posses- 
sion.-^ And  upon  a  bill  to  restrain  a  threatened  trespass, 
the  court  having  granted  an  injunction  may,  to  prevent  a 
multiplicity  of  suits,  entertain  jurisdiction  in  the  same  ac- 
tion to  fix  the  damages  sustained  by  the  injury  in  question 
before  the  injunction  was  granted.-^ 

§  722  a.  TYespass  upon  public  lands  enjoined.  Encroach- 
ments in  the  nature  of  trespasses  upon  the  public  lands  of 
the  United  States  may  be  enjoined  at  the  suit  of  the  gov- 
ernment.--''    And  in  such  cases  the  injunction  may  be  made 

i«  Britton's  Adm'r  v.  Hill,  12  C.  -•'  Vanwinkle  r.  Curtis,   2  Green 

E.   Green,  389.  Ch.,  422. 

-0  Boedieker  v.  East,  24  La.  An.,  24  Winslow  v.  Nayson,  113  Mass., 

154.  411. 

21  White  V.  Flannigan,  1  Md.,  2.-,  United  States  v.  Brighton 
525;  Waldron  y.  Marsh,  5  Cal.,  119;  Ranche  Co.,  25  Fed.,  465;  S.  C, 
Carlisle  v.  Stevenson,  3  Md.  Ch..  26  Fed.,  218;  United  States  v. 
499.  Cleveland  &  C.  C.  Co.,  33  Fed.,  323. 

22  Coker  v.  Simpson,  7  Cal.,  340. 


686  INJUNCTIONS.  [CHAr.  XII. 

mandatory  to  compel  defendant  to  remove  obstructions,  such 
as  fences,  which  he  has  erected  upon  the  public  domain.^s 

§  722  h.  Adoption  of  legal  remedy  as  test  to  relief.  An 
examination  of  the  later  authorities  upon  the  subject  of  in- 
junctions against  trespass  discloses  a  decided  tendency  to 
adopt  the  adequacy  or  inadequacy  of  the  legal  remedy  as 
the  sole  and  ultimate  test  as  to  the  right  to  equitable  re- 
lief in  such  cases,  and  it  will  be  seen  that  the  question  of 
irreparable  injury  is  of  importance  only  in  so  far  as  it  bears 
upon  this  fundamental  question  of  the  legal  remedy.  While 
the  courts  have,  perhaps,  never  in  express  terms  laid  this 
down  as  the  sole  criterion,  it  will  be  seen  that  injunctive 
relief  is  freely  granted  regardless  of  the  irreparable  char- 
acter of  the  injury  inflicted,  where  it  appears  for  any  reason 
that  full  and  complete  redress  may  not  be  had  in  a  court  of 
law.  Such  considerations  as  those  of  a  multiplicity  of  suits,, 
the  continuing  nature  of  the  trespass,  the  insolvency  of  the 
defendant,  numerous  acts  where  the  damages  for  a  single  one 
would  be  insignificant,  and  the  difficulty  of  proving  or  meas- 
uring the  damages,  all  of  which  concern  the  remedy  and  not 
the  wrong,  and  all  of  which  have  come  to  be  of  such  con- 
trolling force,  show  beyond  question  that  it  is  not  so  much 
the  nature  or  kind  of  the  wrong  complained  of  as  it  is  the 
relative  efficiency  of  the  legal  as  compared  with  the  equitable 
remedy,  which  furnishes  the  fundamental,  governing  rule 
by  which  courts  of  equity  are  guided  in  administering  pre- 
ventive relief  against  the  commission  of  a  trespass. 

26  United     States     v.     Brighton    Goodnight,  70  Tex.,  682,  11  S.  W., 
Ranche   Co.,    25   Fed.,    465;    S.    C,    119. 
26    Fed.,    218.      See    also    State    v. 


CHAP.  XII.]  AGAINST  TRESPASS. 


II.     Cutting  Timber. 

§  723.     A  strong  case  of  destruction  or  of  irreparable  mischief  must 
be   made   out. 

724.  Cutting  of  all   the   wood   on  premises   may  l)e   enjoined. 

725.  Rule  as  to  timber  already  cut. 

726.  Possession  coupled   with  title. 

727.  Fruit   trees   and   ornamental    shrubbery;    insolvency;    value  of 

property. 

728.  State  of  plaintifC's  title. 

729.  Fraud  a  ground  for  relief. 

§  723.  A  strong  case  of  destruction  or  of  irreparable  mis- 
chief must  be  made  out.  Although  the  modern  doctriiie  of 
courts  of  equity  in  restraining  trespass  is,  as  we  have  seen, 
more  liberal  than  the  ancient,  yet  a  strong  case  of  destruc- 
tion or  irreparable  mischief  must  be  made  out,  since  courts 
of  law  are,  in  general,  the  proper  forum  for  disposing  of 
actions  of  trespass.  And  the  fact  that  the  title  to  the  prem- 
ises is  disputed,  as  between  the  devisee  and  an  heir  at  laAV, 
constitutes  an  effectual  bar  to  the  granting  of  an  injunction 
against  the  cutting  of  timber.^  Nor  will  the  relief  be  granted 
when  plaintiff  fails  to  show  by  his  bill  a  good  title  to  the 
premises.^  Even  the  cutting  and  removal  of  timber  from 
pine  lands,  valuable  chiefly  for  the  timber,  is  not  such  a 
case  of  irreparable  injury  as  will  warrant  an  injunction, 
where  defendant  claims ,  part  of  the  land  by  adverse  title, 
and  the  real  ownership  is  in  doubt.^  So  equity  will  not  en- 
join the  cutting  of  timber  from  lands  which  are  valuable 
chiefly  for  mines.'*     Nor  will  the  relief  be  granted  where  it 

1  Smith  V.   Collyer,  8  Ves.,  89.  Lumber  Co.,  99  N.  C,  11,  5  S.  E., 

-  Cox  V.  Douglass,  20   West  Va.,  19.     As  to  the  right  to  enjoin  the 

175;    Schoonover      v.    Bright,      24  cutting  and  removal  of  timber  in 

West  Va.,  698.  Kentucky,  see   Hillman  v.   Hurley, 

3  West   V.  Walker,   2   Green   Ch.,  82  Ky.,  626. 
279.     See  also  Powell  v.  Rawlings,         -^  Heaney    v.   Butte   &  M.   C.   Co., 

38  Md.,  239;   Roper  Lumber  Co.  v.  10  Mont.,  590,  27  Pac,  379. 
Wallace,    93    N.    C,    22;    Lewis   v. 


688  INJUNCTIONS.  [chap.  XII. 

is  not  shown  that  the  injury  is  irreparable.^  And  where  a 
statute  gives  ample  remedy  in  addition  to  that  at  common 
law,  equity  will  not  restrain  the  cutting  and  removal  of 
timber,  where  it  does  not  appear  that  defendants  are  in- 
solvent.^ So,  too,  if  the  allegations  of  the  bill  are  vague 
and  general  as  to  the  threatened  removal  of  the  timber,  and 
are  made  upon  belief,  the  court  will  not  interpose."^  Nor  will 
mere  threats  of  defendant  to  cut  wood  on  complainant's  land 
suffice  to  perpetuate  an  injunction  already  granted.^  And 
it  has  been  held  that  the  working  of  turpentine  trees  and 
cutting  timber  for  staves,  the  land  being  valuable  only  for 
this  purpose,  will  not  warrant  the  relief  in  the  absence  of 
any  proof  of  defendant's  insolvency,  since  the  remedy  at 
law  is  ample.^ 

§  724.  Cutting  of  all  the  wood  on  premises  may  be  en- 
joined. Where,  however,  the  trespass  consists  in  the  cutting 
of  timber  upon  complainant's  lands,  going  to  the  destruc- 
tion of  that  which  is  essential  to  the  value  of  the  estate,  and 
to  the  destruction  of  the  estate  itself  in  the  character  in 
which  it  has  been  enjoyed,  a  fitting  case  is  presented  for  re- 
lief by  injunction.i*^  And  the  destruction  of  all  the  timber 
on  complainant's  premises,  where  wood  and  timber  are 
needed  for  the  enjoyment  of  the  property,  will  be  enjoined, 
even  though  damages  might  be  had  at  law,  on  the  ground 
that  the   owner  is  thereby   deprived   of  the  use  of  his  prop- 

'■  Myers     v.    Hawkins,     67     Ark.,  251;   Wadsworth  v.  Goree,  96  Ala., 

413,  56  S.  W.,  640.  227,  10  So.,  848;  Griffith  v.  Hilliard, 

"Cowles  V.   Shaw,   2    Iowa,  496.  64    Vt.,    643,    25    Atl.,    427;    Sautee 

T  Cornelius  v.  Post,  1  Stockt.,  196.  River     Cypress     Lumber     Co.     v. 

s  Woods  V.  Kirkland,  2  La.  An.,  James,  50  Fed.,  360;  King  v.  Stuart, 

337.  84  Fed.,  546;  King  r.  Campbell,  85 

■'  Gause  r.   Perkins,  3  Jones  Eq.,  Fed.,  814.     And  see  Kelly  v.  Robb, 

177;  McCormick  v.  Nixon,  83  N.  C,  58  Tex.,  377;    Camp  v.   Dixon,  112 

113;    Carney   v.    Hadley,     32     Fla.,  Ga.,  872,  38  S.  E.,  71.  52  L.  R.  A.. 

344,  14  So.,  4,  22  L.  R.  A.,  233,  37  755.    As  to  the  right  to  relief  when 

Ara.  St.  Rep.,  101.  the  title  is  in  dispute,  see,  ante,  § 

10  Fulton     V.     Harman.     44     Md.,  698. 


CHAP.  XII.] 


AGAINST   'J'PiESI'ASS. 


689 


erty  in  the  manner  in  wliicli  he  has  been  aecustomed  to  en- 
joy it.  Nor  will  the  relief  be  withheld  because  the  bill  omits 
to  charge  the  injury  as  irreparable,  provided  sufficient  facts 
are  alleged  to  satisfy  the  court  that  such  would  be  the  case.'^ 
And  the  destruction  of  forest  trees  is  such  an  irreparable 
injury  as  will  authorize  the  interference.' 2  Qq  h^q  cutting 
and  removal  of  growing  walnut  trees  from  plaintiff's  prem- 
ises, which  he  had  reserved  for  a  timber  lot,  may  be  en- 
joined as  a  trespass  of  such  a  nature  as  not  to  be  susceptible 
of  adequate  compensation  in  an  action  for  damages.'^  And 
where  an  appeal  is  pending  from  a  decree  which  adjudicates 
the  question  of  title  to  timber  lands,  and,  pending  the  ap- 
peal, the  appellee  enters  upon  the  lands  and  proceeds  to  cut 
the  timber  which  is  their  chief  value,  an  injunction  will  be 
granted  restraining  such  trespass  until  the  final  determination 
of  the  appeal.^"*  But  if  complainant  is  in  possession,  with 
adequate  remedy  at  law  for  the  cutting  of  his  timber,  equity 
will   not    interfere.^  ^ 


11  Davis  t'.  Reed,  14  Md..  152. 

1-  De  la  Croix  v.  Villere,  11  La. 
An.,  39. 

1-  Thatcher  v.  Humble,  67  Ind., 
444. 

1*  Wood  V.  Braxton,  54  Fed., 
1005. 

15  Stevens  v.  Beekman,  1  Johns. 
Ch.,  318.  This  was  a  bill  to  re- 
strain defendants  from  cutting 
timber,  their  only  claim  of  title 
being  from  the  plaintiff  in  an  ac- 
tion of  ejectment  pending  and  un- 
determined. Kent,  Chancellor, 
held  as  follows:  "This  is  a  case 
of  an  ordinary  trespass  upon  land 
and  cutting  down  the  timber.  The 
plaintiff  is  in  possession  and  has 
adequate  and  complete  remedy  at 
law.  This  is  not  a  case  of  the 
usual  application  of  jurisdiction  by 


injunction;  and  if  the  precedent 
were  once  set,  it  would  lead  to  a 
revolution  in  practice;  for  tres- 
passes of  this  kind  are  daily  and 
hourly  occurring.  I  doubt  exceed- 
ingly whether  this  extension  of 
the  ordinary  jurisdiction  of  the 
court  would  be  productive  of  pub- 
lic convenience.  Such  cases  are 
generally  of  local  cognizance,  and 
drawing  them  into  this  court 
would  be  very  expensive  and  other- 
wise inconvenient.  Ixird  Eldon 
said  that  there  was  no  instance  of 
an  injunction  in  trespass  until  a 
case  before  Lord  Thurlow,  relative 
to  a  mine,  and  which  was  a  case 
approaching  very  nearly  to  waste, 
and  where  there  was  no  dispute 
about  the  right.  Lord  Thurlow 
had    great   difficulty  as  to   injunc- 


690  INJUNCTIONS.  [chap.  XII. 

§  725.  Rule  as  to  timber  already  cut.  The  disposition  of 
timber  already  cut  at  the  time  of  obtaining  the  injunction 
may  be  taken  into  consideration  by  the  court  in  granting 
the  relief.  Thus,  it  is  held  that  the  patentee  of  public  lands, 
while  he  may  restrain  the  future  cutting  of  timber  upon  his 
premises,  will  not  be  allowed  to  enjoin  the  removal  of  tim- 
ber which  had  been  cut  before  he  obtained  his  patent.^^ 
Upon  the  other  hand,  where  an  action  of  ejectment  is  pend- 
ing to  determine  the  disputed  question  of  title  to  the  locus 
in  quo,  the  defendant  may  be  enjoined,  not  only  from  cutting 
the  timber,  but  from  removing  that  which  is  already  cut.^''' 

§  726.  Possession  coupled  with  title.  While  equity  will  not 
restrain  the  commission  of  a  trespass  upon  realty  unless 
the  right  is  clear  and  the  mischief  irreparable,^^  yet  where 
there  has  been  a  long  and  undisturbed  possession  of  the 
premises  under  title  deducible  of  record,  such  possession, 
coupled  with  unquestioned  evidence  of  title,  will  authorize 
the  relief  as  against  a  mere  trespasser  without  color  of 
right.i9 

§727.  Fruit  trees  and  ornamental  shrubbery;  insolvency; 
value  of  property.  The  destruction  of  fruit  trees  and  or- 
namental shrubbery  is  an  injury  to  the  realty  so  irreparable 
in  its  nature  that  equity  will  interfere.-*^  Nor  does  it  make 
any  difference  whether  the  trees  were  planted  by  the  owner 
for  shade  or  ornament,  or  whether  they  were  so  situated  nat- 
urally  as  to  serve   this   purpose.-^      And   it   is   not   necessary 

tions    for    trespass;     and,    though  is  Peck  v.   Brown,  5  Nev.,  81. 

Lord   Eldon  thought  it  surprising  i^  King  r.  Campbell,  85  Fed.,  814. 

that  the  jurisdiction  by  injunction  is  Gause  r.  Perkins,  3  Jones  Eq., 

was  taken  so  freely  in  waste  and  177;    Schurmeier   v.   St.  Paul  &  P. 

not   in  trespass,  yet  he  proceeded  R.  Co.,  8  Minn.,  113. 

with  the  utmost  caution  and  diffi-  i"  Falls  V.  W.  P.  Co.  v.  Tibbetts, 

dence,  and   only   allowed  the  writ  31  Conn.,  165. 

in  solitary  cases  of  a  special   na-  -•*  Daubenspeck  i\  Grear,  18  Cal.» 

lure,  and   where   irreparable  dam-  443. 

age   might  be   the   consequence   if  21  Shipley  v.  Ritter,  7  Md.,  408. 
the  act  continued." 
44 


CHAP.  XII.]  AG.IINST   TRESPASS.  691 

in  a  bill  filed  to  restrain  trespass  to  the  realty  to  allege  abso- 
lute insolvency  of  the  defendant,  but  it  will  suffice  that  such 
facts  appear  as  show  that  a  judgment  for  damages  would 
be  entirely  worthless.--  And  the  jurisdiction  of  the  court  in 
this  class  of  cases  does  not  depend  upon  the  value  of  the 
property  destroyed,  but  upon  the  question  whether  its  destruc- 
tion would  materially  impair  the  enjoyment  of  the  property 
as  held  and  occupied  at  the  time  of  the  commission  of  the 
trespass.-^ 

§728.  State  of  plaintijff's  title.  Equity  will  not  restrain 
the  cutting  of  timber  when  complainant  does  not  expressly 
aver  in  his  bill  title  in  himself  to  the  premises  in  question, 
and  when  he  does  not  allege  the  insolvency  of  defendants, 
or  otherwise  show  that  he  has  not  a  complete  remedy  at 
law.-^  Nor  will  the  court  interfere  when  the  bill  avers  that 
complainant  has  sold  the  premises  on  which  the  timber  is 
being  cut.^^'  And  when  both  parties  claim  title  to  the  land 
upon  which  the  timber  is  being  cut  by  defendant,  and  the 
proof  does  not  show  that  the  trees  have  any  peculiar  value, 
or  that  the  enjoyment  of  the  property  will  be  so  affected  by 
the  cutting  as  to  render  the  injury  irreparable,  an  injunc- 
tion will  be  refused,  and  complainant  will  be  left  to  follow 
his  remedy  at  law.-^  So  when  complainant  claims  to  be  en- 
titled under  an  agreement  with  defendant's  grantors  to  re- 
move timber  from  defendant's  premises,  and  seeks  to  restrain 
defendant  from  the  cutting  and  remoVal  of  the  timber,  the 
relief  will  be  denied  upon  the  ground  that  the  legal  remedy 
by  an  action  for  damages  is  adequate.-'^  And  where  com- 
plainant obtains  an  interlocutory  injunction  to  prevent  de- 
fendant from  cutting  timber  upon  premises  claimed  by  both 

22  Hicks  V.  Compton,  18  Cal.,  206.  25  McMillan    v.    Ferrell,    7    West 

23  Shipley  v.  Ritter,  7  Md.,  408.  Va.,   223. 

24  McMillan  v.  Ferrell,  7  West  Va.,  26  Powell  v.  Rawlings,  38  Md., 
223;   Western  M.  &  M.  Co.  v.  Vir-  239. 

ginia  C.  C.  Co.,  10  West  Va.,  250.        2t  Griffin  v.  Winne,  10  Hun,  571. 


692  INJUNCTIONS.  [chap.  Xll. 

parties,  but  the  only  proof  of  complainant's  title  adduced 
upon  the  hearing  is  an  award  which  the  court  finds  to  be 
invalid  by  reason  of  misconduct  of  the  arbitrator,  and  all 
the  allegations  of  complainant's  title  are  denied  by  the  an- 
swer and  unsustained  by  proof,  it  is  proper  to  dissolve  the 
injunction   and   to   dismiss  the   bill.-^ 

§  729.  Fraud  a  ground  for  relief.  The  element  of  fraud 
upon  the  part  of  defendant  in  connection  with  the  cutting 
of  timber  may  constitute  sufficient  ground  for  extending 
relief  by  injunction.  Thus,  when  a  judgment  creditor  takes 
from  his  debtor  a  conveyance  of  his  lands  in  satisfaction  of 
the  judgment,  and  a  third  person,  with  full  knowledge  of  the 
facts,  secretly  and  fraudulently  obtains  from  the  judgment 
debtor  a  conveyance  of  the  timber  growing  upon  the  lands 
conveyed,  such  person  may  be  enjoined  from  cutting  and 
removing  the  timber,  the  relief  being  based  in  such  case  upon 
the  well  established  jurisdiction  of  equity  in  matters  of 
fraud.29 

28  Tate  V.  Vance,  27  Grat,  571.  29  Raines  v.  Dunning,  41  Ga.,  617. 


CHAP.  XII. J  AGAINST  TRESPASS.  693 


III.     Trespass  to  Mines. 

§  730.     Greater  latitude  in  cases  of  mines. 

731.  Complainant's  title;    removal  of  ore;   expenditures  by  defend- 

ant. 

732.  Title  must  be  established  at  law. 

733.  Flowing  of  refuse  matter  may  be  enjoined;  when  perpetual  in- 

junction awarded. 

734.  Working  through  into  another's  mine;    digging  ore  on  public 

land. 

735.  Placer    mines. 

736.  Rights  of  surface  owner. 

737.  Reducing    pillars    in    mine;    mandatory    injunction. 

738.  Diversion   of  water  from  tunnel. 

§  730.  Greater  latitude  in  cases  of  mines.  In  the  case  of 
trespass  to  mining  property  greater  latitude  is  allowed 
courts  of  equity  than  in  restraining  ordinary  trespasses 
to  realty,  since  the  injury  goes  to  the  immediate  destruc- 
tion of  the  minerals  which  constitute  the  chief  value  of 
this  species  of  property.  Where,  therefore,  the  trespass 
consists  in  the  removal  of  ore  from  complainant's  mines, 
the  legal  title  being  clearly  established  in  complainants, 
they  are  entitled  to  an  injunction,  even  though  an  action 
at  law  would  lie.^  And  upon  similar  principles  equity 
will    interfere    by    injunction     to     restrain     the     removal    of 

1  Merced   M.    Co.   v.  Fremont,   7  892;     Chambers    v.   Alabama    Iron 

Cal.,  317;     Scully  v.  Rose,  61   Md.,  Co.,  67  Ala.,  353;    Nichols  v.  Jones, 

408;     Silva  v.  Rankin,  80  Ga.,  79,  19  Fed.,  855;    Cheesman  v.  Shreve, 

4   S.   E.,   756;     Lockwood   r.   Luns-  37  Fed.,  36.     Anderson  r.  Harvey, 

ford,  56  Mo.,  68;    Anderson  v.  Har-  10  Grat.,  386,  was  a  bill  for  an  in- 

vey,  10  Grat.,  386;     Allen  v.   Dun-  junction  to  restrain  the  removal  of 

lap,    24    Ore.,    229,     33     Pac,     675;  ore      from     complainant's     mines. 

Muldrick  /•.  Brown,  37  Ore.,  185,  61  Daniel,  J.,  pronouncing  the  opinion 

Pac,  428;     Oolagh  Coal  Co.  v.  Mc-  of  the  court,  says:      "The  practice 

Caleb,  15  C.  C.  A.,  270,  68  Fed.,  86;  of  courts  of  equity  of  interfering 

Dimick  ?;.  Shaw,  36  C.  C.  A.,  347.  in  such  cases  by  way  of  injunction, 

94  Fed.,  266.     And   see  Hammond  is     one    comparatively    of     recent 

f.  Winchester,   82  Ala.,  470,  2  So.,  origin;       but     the    jurisdiction     is 


694 


INJUNCTIONS. 


[CIIAP.  XII. 


stone  from  a  quarry.-  And  although  the  jurisdiction  of 
the  court  over  the  parties  is  put  in  issue  by  plea,  if  the  bill 
contains  sufficient  averments  of  jurisdiction  the  court  may 
award  a  temporary  injunction  to  stay  the  mischief  until 
the  question  raised  by  the  plea  can  be  determined.^ 

§731.  Complainant's  title;  removal  of  ore;  expenditures 
by  defendant.  While  the  general  rule  requiring  complainant 
to  show  a  good  title  extends  to  trespass  against  mines,  yet  it 
may  be  relaxed  somewhat  in  a  case  of  irreparable  mischief, 
where  the  injury  goes  to  the  destruction  of  the  very  sub- 
stance of  the  estate.  And  in  such  a  case  the  injunction 
will  not  be  limited  to  the  prevention  of  future  trespass,  but 
will  restrain  the  removal  of  ore  already  extracted  from  the 
mine.^  And  where  the  title  is  in  dispute  and  the  injury 
would  be  great,  an  injunction  may  be  granted  pending  the 
determination  of  the  question  of  title  in  an  action  at  law.^ 
If,    however,     defendants    have    been    in    possession    for    a 


now  fully  recognized  and  well  es- 
tablished by  cases  both  in  Eng- 
land and  America.  Mitchell  r. 
Dors,  6  Ves.  R.,  147;  Hanson  r. 
Gardiner,  7  Ves.  R.,  305;  Thomas 
v.  Oakley,  18  Ves.  R.,  184;  3  Dan- 
iel's Ch.  Pr.,  1631-2;  Stevens  v. 
Beekman,  1  John.  Ch.  R.,  318;  Jer- 
ome V.  Ross,  7  John.  Ch.  R.,  315; 
Smith  V.  Pettingill,  15  Verm.  R., 
84.  The  land  upon  which  the  tres- 
pass is  alleged  to  be  committed  is 
proved  to  be  of  little  or  no  value 
except  for  the  iron  ore  found  on 
it,  which  is  proved  to  be  of  an  ex- 
cellent quality.  The  trespass  is  one 
which  goes  to  the  change  of  the 
very  substance  of  the  inheritance, 
to  the  destruction  of  all  that  gives 
value  to  it.  The  fact  proved  by  the 
appellant  that  the  value  of  the  ore 
per  load  could  be  readily  esti- 
mated,   does    not    deprive    a    court 


of  equity  of  its  right  to  interfere 
in  the  case  by  way  of  injunction. 
The  same  might  be  shown  in  most 
cases  of  the  kind.  The  products 
of  most  mines  have  a  value 
already  fixed  or  easy  of  ascertain- 
ment by  proof;  yet  it  was  in  pre- 
vention of  like  trespasses  to  this 
very  species  of  property,  mines  of 
ore,  coal,  etc.,  that  the  jurisdiction 
in  question  had  its  origin  and  still 
continues  to  be  most  frequently 
exercised." 

-  Norton  t 
C,  330. 

•'  Fremont 


Snyder,  4  Thomp.  & 
Co., 


t\     Merced    M. 
McAl.  C.  C,  267. 

4  United  States  r.  Parrott,  McAl. 
C.  C,  271,  and  cases  cited;  Er- 
hardt  v.  Boaro,  113  U.  S.,  537. 

•>  Thomas  v.  Nantahala  M.  &  T. 
Co.,  7  C.  C.  A.,  330,  58  Fed.,  485. 
And  see,  a7ite,  §  698. 


CHAP.  XII.]  AGAINST  TEESPASS.  695 

considerable  time,  and  have  expended  large  sums  of  money 
in  developing  the  mine,  the  injunction  will  not  be  allowed 
except  upon  a  very  strong  showing/'  And  where  com- 
plainant seeks  to  restrain  the  mining  and  taking  of  ores  from 
mineral  lands,  but  his  only  right  or  title  is  based  upon  a 
parol  lease  or  license,  the  proof  in  support  of  which  is  not 
clear  or  satisfactory,  an  injunction  should  not  be  allowedJ 
Nor  will  equit}^  interfere  where  it  does  not  appear  that  the 
trespass  complained  of  consists  in  the  removal  or  threatened 
removal  of  ore  or  in  some  other  act  going  to  the  injury  or 
destruction  of  the  mine.'^  Nor  will  defendants  be  enjoined 
from  an  alleged  trespass,  resulting  from  their  preparations  for 
mining  coal,  in  which  complainant  has  allowed  them  to  pro- 
ceed for  tw^o  years,  and  to  expend  considerable  sums  of 
money,  without  objection.^ 

§  732.  Title  must  be  established,  at  law.  The  jurisdiction 
in  restraint  of  trespass  to  mines  is  not  an  original  jurisdiction 
of  equity,  under  which  the  court  would  be  justified  in  trying 
the  title  to  the  mines  themselves,  and  the  party  aggrieved 
must  therefore  first  establish  his  title  at  law,  or  show  satis- 
factory reason  for  not  doing  so.i°  And  an  injunction  has 
been  refused  when  defendants  claimed  under  an  adverse 
title,  and  when  plaintiffs  had  allowed  nearly  a  year  to  pass, 
after  defendants  had  begun  working  the  mine,  before  seek- 
ing relief.^  ^  So  it  is  proper  to  refuse  the  injunction  when 
plaintiff's  right  is  by  no  means  clear,  and  when  his  remedy  at 
law  is  adequate.^-     So  an  injunction  should  be  refused  where 

6  Real  Mining  Co.  r.  Pond   Min-         lo  Irwin  r.  Davidson,  3  Ired.  Eq., 

ing     Co.,     23  Cal.,     82.       And  see  311;  Smith  v.  Jameson,  91  Mo.,  13, 

Bishop  V.  Baisley,  28  Ore.,  119,  41  3  S.  W.,  212.    But  see,  contra,  New 

Pac,  937.  Jersey    Z.   &   I.   Co.   v.   Trotter,   38 

-  Clegg  V.  Jones,  43  Wis.,  482.  N.  J.  Eq.,  3. 

8  Parlier  v.  Furlong,  37  Ore.,  248,         n  Haigh  v.  Jaggar,  2  Coll.,  231. 
62  Pac,  490.  12  Howe  r.   Rochester  I.   M.  Co., 

0  Birmingham    C.    Co.    v.    Lloyd,  66  Barb.,  592. 
18  Ves.,  515. 


696  INJUNCTIONS.  [chap.  XII. 

the  line  beyond  which  the  defendant  must  cease  operations 
can  not  be  ascertained  with  precision  and  certainty. ^-'^  And 
when  defendants  are  in  possession  under  claim  of  title 
made  in  good  faith,  it  is  proper  to  refuse  an  injunction  and 
to  leave  the  parties  to  their  remedy  at  law  to  determine 
the  question  of  title.^^  It  is  not  necessary,  however,  that 
the  owner  should  have  actually  established  his  title  by  an 
action  at  law,  and  if  he  makes  out  a  good  prima  facie  title, 
which  is  not  controverted  by  defendant,  and  shows  that 
those  under  whom  he  claims  have  been  in  possession  and 
use  of  the  mine  for  a  long  period  of  years,  he  is  entitled  to 
an  injunction  to  prevent  such  depredations  upon  his  mine 
as  are  likely  to  result  in  irreparable  injury.^ ^  And  it  is 
proper  to  grant  an  injunction  pendente  lite  to  restrain  de- 
fendants from  w^orking  their  mines  in  such  manner  as  to 
endanger  that  of  plaintififs,  with  directions  to  plaintiffs  to 
bring  an  action  to  establish  their  title  at  law.^^ 

§  733.  Flowing  of  refuse  matter  may  be  enjoined;  when  per- 
petual injunction  awarded.  The  jurisdiction  is  not  confined  to 
restraining  the  removal  of  ore,  but  equity  will  interfere  in 
behalf  of  prior  occupants  of  mining  claims,  to  restrain  the 
flowing  of  refuse  matter  over  their  claims  by  adjoining  own- 
ers.^'^  So  a  company  engaged  in  mining  in  the  vicinity  of 
plaintiff's  premises  may  be  restrained  from  flooding  and  cover- 
ing plaintiff's  land  with  the  sand,  gravel  and  debris  from  such 

1'!  St.  Louis  M.  &  M.  Co.  v.  Mon-  a  receiver.     Parker  v.   Parker,   82 

tana  M.  Co.,  58  Fed.,  129.  N.  C,  165. 

i<  Leininger's    Appeal,     106     Pa.  is  West    Point   Iron   Co.    v.    Rey- 

St.,  398.     It  is  held  in  North  Caro-  mert,  45  N.  Y.,  703. 

lina,  where  defendants  are  in  pos-  i«  Duke  of  Beaufort  v.  Morris,  6 

session   of  and    working    a    mine  Hare,  340. 

claiming  as  tenants  in  common  i"  Logan  v.  Driscoll,  19  Cal.,  623. 
with  plaintiffs,  that  it  is  improper  But  see  Lord's  Executors  v.  Car- 
lo enjoin  defendants  in  the  first  in-  bon  I.  M.  Co.,  38  N.  J.  Eq.,  452; 
Htance  from  working  the  mine,  and  McCauley  v.  McKeig,  8  Mont.,  389. 
that  the  appropriate  remedy  in  21  Pac,  22. 
such  case  is  by  the  appointment  ot 


CHAP.  XII.]  AGAINST  TRESPASS.  697 

mines,  thereby  rendering  it  valueless  for  agricultural  pur- 
poses.^^  And  if  the  answer  admits  the  entry  and  working 
of  complainant's  mine,  but  denies  his  title,  upon  satisfactory 
proof  of  his  title  a  perpetual  injunction  should  be  awarded.^ '^ 
§  734.  Working  through  into  another 's  mine ;  digging  ore 
on  public  land.  Where  one  in  digging  coal  upon  his  own 
premises  has  worked  through  into  the  ground  of  another,  he 
may  be  enjoined  from  proceeding  farther.-^  And  the  digging 
of  lead  ore  from  the  public  lands  of  the  United  States,  is 
such  a  trespass  as  will  warrant  the  interference  of  equity  in 
behalf  of  the  government.^^  So  a  state  may  enjoin  persons 
from  digging  phosphate  rock  and  deposits  from  the  bed  of  a 
navigable  stream  within  the  state.22 

§  735.  Placer  mines.  It  is  thus  apparent  that  courts  of 
equity  are  inclined  to  a  somewhat  liberal  use  of  the  remedy  by 
injunction  to  prevent  trespasses  to  mines,  the  relief  being 
granted  for  the  prevention  of  irreparable  injury  resulting  as 
well  from  the  character  of  the  property  as  from  the  nature  of 
the  trespass.  And  the  relief  is  regarded  as  peculiarly  ap- 
plicable to  the  case  of  a  placer  mine,  the  value  of  which, 
consists  in  auriferous  deposits,  which  may  be  worked  out 
and  removed  without  leaving  any  evidence  of  their  value 
upon  which  to  base  an  accounting.  Where,  therefore, 
plaintiffs  by  their  location  have  acquired  a  right  to  possess 
such   placer  mines   and  to   appropriate   the  minerals  therein, 

18  Hobbs  V.  Amador  &  S.  C.  Co.,  let  one  to  a  tenant,  who  took  coal 
66  Cal.,  161,  4  Pac,  1147.  See  also  out  of  that  close,  and  also  out  of 
People  V.  Gold  Run  D.  &  M.  Co.,  66  the  other,  which  was  not  demised; 
Cal.,  155,  4  Pac,  1150.  and    the     difficulty     was,    whether 

19  McLaughlin  v.  Kelly,  22  Cal.,  the  injunction  should  go  as  to 
211.  both;     and    it    was    ordered    as    to 

20  Mitchell   V.   Dors,   6   Ves.,  147.  both." 

Says  Lord  Eldon:  "That  is  tres-  21  United  States  v.  Gear,  3  How., 
pass,  not  waste.     But  I  will  grant     121. 

the  injunction  upon  the  authority  -~  Coosaw  Mining  Co.  v.  South 
of  a  case  before  Lord  Thurlow;  a  Carolina,  144  U.  S.,  550,  12  Sup.  Ct. 
person,  landlord  of  two  closes,  had     Rep.,  689,  affirming  S.  C,  47  Fed., 

225. 


698  INJUNCTIONS.  [chap.  XII. 

the}^  may  obtain  the  aid  of  equity  by  injunction  to  prevent 
defendants  from  encroaching  upon  their  mines.^^ 

§  736.  Rights  of  surface  owner.  A  surface  owner  of  lands  is 
also  entitled  to  an  injunction  to  prevent  the  owner  of  minerals 
beneath  the  surface  from  obtaining  them  in  such  manner  as  to 
destroy  or  seriouslj^  injure  the  surface.-^  But  when  the  grant- 
or of  real  property  reserves  to  himself  all  mines  and  minerals 
under  the  land,  with  the  right  to  dig  for  and  take  them 
away,  covenanting  to  make  compensation  to  the  surface 
owner,  his  grantee,  for  any  damage  which  may  be  occa- 
sioned thereby,  the  surface  owner  will  not  be  allowed  to 
enjoin  his  grantor  from  taking  minerals  from  under  the  land 
so  conveyed.-^ 

§737.     Reducing    pillars    in   mine;    mandatory   injunction. 

The  lessee  of  a  mine  who  has  worked  it  out  may  be 
enjoined  by  the  lessor  from  proceeding  to  reduce  the 
pillars,  which  had  been  left  to  support  the  roof  of  the  mine, 
in  such  manner  as  to  endanger  the  falling  in  of  the  roof 
and  the  flowing  in  of  water  upon  the  mine.^^  So  when 
plaintiffs  and  defendants  own  and  operate  iron  mines  ad- 
joining each  other,  defendants  may  be  restrained  from  re- 
moving the  pillars,  walls  and  other  supports  of  their  mine 
to  such  an  extent  as  to  render  the  surface  liable  to  fall  in, 
to  the  irreparable  injury  of  plaintiff's  mine.^'''  And  where 
the  lessee  of  a  mine  had  worked  into  complainant's  prem- 
ises and  extracted  a  large  quantity  of  ore  therefrom,  a 
mandatory  injunction  was  granted  requiring  defendant  to 
permit  complainant  to  inspect  the  mine  for  the  purpose  of 
determining  the  extent  of  the  injury.^s 

2'!  Chapman  v.  Toy  Long,  4  Sawy.,  20  Thomas  Iron  Co.  r.  Allentowu 
28.  Mining  Co.,  28  N.  J.  Eq.  (1  Stew.), 

2-»  Hext  V.  Gill,  L.  R.  7  Ch.,  699.     77. 

2-'  Aspden  v.  Seddon,  L.  R.  10  27  Lord's  Executors  r.  Carbon  I. 
Ch.,  394.  M.  Co.,  38  N.  J.  Eq.,  452. 

28  Thomas  Iron  Co.  v.  Allentown 


CHAP.  XII.]  AGAINST  TRESPASS.  690 

§  738.  Diversion  of  water  from  tunnel.  Where  plaintiffs 
are  entitled  to  a  stream  of  water  running  through  their  tun- 
nel which  is  used  for  mining  purposes,  and  defendants  divert 
the  water  from  plaintiff's  tunnel  by  running  their  own  tun- 
nel underneath  it,  they  may  be  enjoined  if  in  so  conducting 
their  tunnel  they  are  not  digging  in  their  own  lands  and 
when  the  water  is  not  shown  to  come  from  their  own  lands. -'-^ 

Mining  Co.,  28  N.  J.  Eq.  (1  Stew.),        29  Cole  Co.    v.    Virginia    Co.,    1 
77.  Sawy.,  470. 


CHAPTER  XIII. 
OF  INJUNCTIONS  AGAINST  NUISANCE. 

I.     Grounds  of  the  Jurisdiction §  739 

II.     Public  Nuisances 759 

III.     Nuisances  to  Dwellings 772 

IV.     Nuisances  to  Water   794 

v.     Streets    and    Highways    816 

VI.     Railways    826 

VII.     Bridges    833 

VIII.     Mell-Dams    839 


I.     Grounds  of  the  Jurisdiction. 

§  739.     Foundation  of  the  relief;  distinction  between  trespass  and  nui- 
sance. 

740.  Right  should  be  established  at  law;   relaxation  of  rule;   injury 

should  be  irreparable;  relative  convenience  and  inconvenience. 

741.  When  right  sufficiently  established  at  law;  threatened  nuisance. 

742.  Injunction  denied  when  nuisance  uncertain;  illustrations. 

743.  The  same. 

744.  Injunction  refused  when  facts  uncertain;   when  bill  dismissed 

without  prejudice. 

745.  Remedy  at  law  a  bar  to  injunction. 

746.  Difficulty  of  abating  nuisance. 

747.  Prohibition   of   business   by    municipal   authorities. 

748.  Erection  of  wooden  buildings;    conflict  of  authority. 

749.  Abatement   and   damages   in   statutory  action. 

750.  Construction   of   ditch. 

751.  Throwing  surface  water  upon  adjacent  lands. 

752.  Lawful    business   not   enjoined;    criminal    liability    no    bar    tO 

relief. 

753.  Right  to  lateral  support  protected. 

754.  Burning  wooded  lands. 

755.  Exclusive   right  of  slaughtering  animals. 

756.  Effect  of  acquiescence  and  delay;    effect  of  release;   hindrance 

by  plaintiff. 

757.  Joinder   of   parties. 

758.  When  injunction  perpetuated;  when  made  mandatory. 

700 


CHAr.  XIII.]  AGAINST  NUISANCE.  701 

§  739.  Foundation  of  the  relief ;  distinction  between  tres- 
pass and  nuisance.  The  foundation  for  the  interference  of 
equity  in  restraint  of  nuisances  rests  in  the  necessity  of  pre- 
venting irreparable  mischief  and  multiplicity  of  suits.  The 
principles  governing  courts  of  equity  in  the  exercise  of  this 
jurisdiction  are  closely  allied  to  those  which  control  their 
action  in  restraining  trespasses.  The  distinction  between  tres- 
pass and  nuisance  consists  in  the  former  being  a  direct  in- 
fringement of  one's  rights  of  property,  while  in  the  latter  the 
infringement  is  the  result  of  an  act  which  is  not  wrongful  in 
itself,  but  only  in  the  consequences  which  may  flow  from 
it.  In  the  one  case  the  injury  is  immediate;  in  the  other 
it  is  consequential,  and  generally  results  from  the  commis- 
sion of  an  act  beyond  the  limits  of  the  property  affected. i 
And  the  injury  must  be  such  as  is  not  susceptible  of  ade- 
quate pecuniary  compensation  in  damages,  or  one  the  con- 
tinuance of  which  would  cause  a  constantly  resurring  griev- 
ance.2 

§740.  Right  should  be  established  at  law;  relaxation  of 
rule;  injury  should  be  irreparable;  relative  convenience  and 
inconvenience.  The  concurrent  jurisdiction  of  courts  of 
equity,  by  the  writ  of  injunction,  with  courts  of  law  in  cases 
of  private  nuisance  is  ancient  and  well  established.^  To  war- 
rant the  interference,  a  strong  case  of  imperative  necessity 
must  appear,  and  the  nuisance  must  be  in  derogation  of 
rights  long  previously  enjoyed.*  As  a  general  rule  it  is 
necessary  that  the  person  seeking  the  aid  of  equity  to  re- 
strain a  private  nuisance  should  have  first  established  his 
right  at  law,  and  where  the  right  is  doubtful  and  has  not 

1  Reynolds     v.     Clarke,     2     Ld.  Paper  Co.   r.  Ford.  6  Del.  Ch.,  52. 

Raym.,    1399;      Weston    v.    Wood-  33  Atl.,  618. 

cock,  5  M.  &  W.,  587.  3  Gardner  r.  Newburgh,  2  Johns. 

-  New  York  v.  Mapes,  6  Johns.  Ch.,  162. 

Ch.,  46;     Mohawk  &  H.  R.   Co.  v.  4  Van   Bergen   r.   Van  Bergen,   3 

Artcher,  6  Paige,  83;   Dana  v.  Val-  Johns.  Ch..  282;  Porter  i:  Witham, 

entine,  5  Met.,  8;    Jessup  r.  Moore  17  Maine,  292. 


702 


INJUNCTIONS. 


[chap.  XIII. 


been  established,  the  relief  will  be  withheld.^  Thus,  where 
the  complainant  has  failed  to  obtain  judgment  against  de- 
fendants in  an  action  at  law  for  the  nuisance,  and  legal 
proceedings  are  still  pending,  the  injunction  will  be  denied.*^ 
And  where  defendant's  right  to  erect  the  structure  com- 
plained of  as  a  nuisance  is  in  dispute,  and  is  not  clearly 
established  at  law,  the  court  will  not  interfere.'^  And  espec- 
ially will  relief  be  denied  where,  in  an  action  for  damages 
resulting  from  the  alleged  nuisance,  there  has  been  a  verdict 
and  judgment  for  the  defendant.^  And  where  it  is  sought 
to  enjoin  the  obstruction  of  an  easement  consisting  of  a  right 


5  Mayor  v.  Ciirtiss,  Clarke  Ch., 
336;  Rhea  v.  Forsyth,  37  Pa.  St., 
503;  Mammoth  Co.'s  Appeal,  54 
Pa.  St.,  183;  City  of  New  Castle 
V.  Raney,  130  Pa.  St.,  546,  18  Atl., 
1066,  6  L.  R.  A.,  737;  Mowday  v. 
Moore,  133  Pa.  St.,  598,  19  Atl., 
626;  Wood  v.  McGrath,  150  Pa. 
St.,  451,  24  Atl.,  682,  16  L.  R.  A., 
715;  Arnold  v.  Klepper,  24  Mo., 
273;  Porter  v.  Witham,  17  Me., 
392;  Tracy  v.  Le  Blanc,  89  Me., 
304,  36  Atl.,  399;  Sterling  v.  Lit- 
tlefield,  97  Me.,  479,  54  Atl.,  1108; 
Kennerty  v.  Etiwan  Phosphate  Co., 
17  S.  C,  412;  Van  Bergen  v.  Van 
Bergen,  3  Johns.  Ch.,  282;  Lowns- 
dale  V.  Gray's  H.  B.  Co.,  117  Fed., 
983;  McCord  v.  Iker,  12  Ohio,  387. 
In  the  latter  case.  Reed,  J.,  ob- 
serves: "The  ground  upon  which 
the  interference  of  a  court  of 
equity  is  invoked,  is  that  the  mis- 
chief to  complainant's  property  is 
irreparable,  and  that  actions  at 
law  furnish  no  adequate  relief. 
Whilst  this  is  an  admitted  ground 
of  equity  jurisdiction,  courts  of 
chancery  will  carefully  abstain 
from  interference  where  the  injury 


will  support  an  action  at  law,  un- 
less the  party  seeking  such  aid 
brings  himself  within  the  clearest 
principle  of  equitable  relief.  But 
if  it  be  necessary  to  prevent  a  per- 
manent injury  to  property,  or  its 
entire  ruin,  from  the  erection  and 
continuance  of  a  nuisance,  and 
the  law  can  not  prevent  the  evil, 
equity  will  interfere,  although  the 
property  itself  may  be  of  small 
value.  But,  in  cases  of  this  sort, 
equity  will  not  interfere  until  the 
right  and  the  facts  have  been  es- 
tablished beyond  doubt,  at  law." 
And  it  has  been  held  that  the  re- 
quirement that  the  right,  when  in 
doubt,  must  be  first  established  at 
law,  is  jurisdictional  and  that  the 
court  may  therefore  raise  the  ob- 
jection of  its  own  motion  where  it 
is  not  raised  by  the  pleadings  or 
asserted  in  the  argument.  Mirkil 
V.  Morgan,  134  Pa.  St.,  144,  19  Atl., 
628. 

c  Durant  v.  Williamson,  3  Halst 
Ch.,  547. 

7  Irwin  n.  Dixon,  9  How.,  10. 

s  Bierer  r.  Hurst,  162  Pa.  St,  ], 
29  Atl.,  98.     And  see,  post,  §  760. 


I 


CHAP.  XIII.]  AGAINST  NUISAXCE.  703 

of  way  and  it  appears  that  the  land  over  which  the  ease- 
ment is  claimed  has  been  sold  for  taxes  and  a  tax  deed  issued, 
which,  if  valid,  would  result  in  an  extinguishment  of  the 
easement,  relief  will  be  denied  until  the  plaintiff  first  estab- 
lishes his  legal  right  as  against  the  validity  of  the  tax  deed.^ 
And  while  a  trespass  affords  no  foundation  for  an  injunc- 
tion where  it  is  only  contingent  and  temporary,  yet  if  it 
continues  so  long  as  to  become  a  nuisance,  equity  may 
properly  enjoin.^*^  To  warrant  the  exercise  of  the  jurisdic- 
tion in  restraint  of  nuisance,  the  same  irreparable  injury 
must  be  shown  as  in  the  case  of  trespass,  and  where  this 
does  not  appear  the  person  will  be  left  to  his  remedy  at 
law.^^  Nor  will  equity  interfere  where  the  injury  is  of 
a  trifling  or  temporary  character.^ 2  And  when  the  alleged 
nuisance  consists  in  the  sale  of  an  adulterated  article, 
although  the  act  itself  may  be  illegal,  it  will  not  be  enjoined 
as  a  nuisance  when  it  is  not  shown  to  be  dangerous  to  life 
or  health.13  And  in  granting  injunctions  against  nuisances, 
as  in  other  cases  of  relief  by  injunction,  the  court  may  prop- 
erly be  guided  by  the  consideration  of  the  relative  conven- 
ience and  inconvenience  of  the  parties;  and  if  it  appears  that 
the  benefit  resulting  to  the  plaintiff'  from  the  granting  of 
the  writ  will  be  slight  as  compared  with  the  injury  to  the 
defendant,  the  relief  may  be  denied  and  the  plaintiff'  left  to 
the  pursuit  of  his  remedy  at  law.^'*  As  above  indicated,  the 
rule  requiring  the  right  to  be  first  established  at  law,  as 
a  condition  to  the  granting  of  equitable  relief,  is  confined  to 
cases  where  the  right  is  doubtful  or  is  actually  in  dispute, 

9  Oswald  «;.  Wolf,  129  111.,  200,  21     C.   Co.,   3    DeGex,   M.    &    G.,   304; 
N.  E.,  839.  Swaine  v.  Great  N.  R.  Co.,  33  L.  J. 

10  Coulson  V.  White,  3  Atk.,  21.  Ch.,  399. 

11  Fort    (/•.    Groves,    29    Md.,    188.  i3  Health  Department  v.  Purdon, 
See  also    Hawley  v.   Beardsley,   47  99  N.  Y.,  237,  1  N.  E.,  687. 
Conn.,  571.  1*  Clifton    Iron   Co.    v.     Dye,    87 

i2McCord  V.  Iker,  12  Ohio,  387;     Ala.,  468,  6  So.,  192. 
Attorney-General    v.    Sheffield  Gas 


'''04  INJUNCTIONS.  [CfTAP.  XIII. 

and  where  it  is  not  denied,  or,  if  denied,  is  nevertheless  free 
from  substantial  doubt,  and  the  facts  establishing  the  nui- 
sance, and  the  existence  of  the  nuisance  itself  are  clear,  the 
relief  will  be  granted  in  the  first  instance  without  requiring 
the  right  to  be  established  in  an  action  at  law.i''»  And  where 
the  injury  complained  of  is  a  constantly  recurring  one  as 
distinguished  from  one  which  is  permanent,  it  is  no  defense 
that  the  plaintiff  has  recovered  a  judgment  at  law  for  dam- 
ages arising  from  the  nuisance  where  such  judgment  is  for 
past  damages  only  and  affords  no  redress  for  those  which 
arise  in  the  future.^  ^' 

§741.  When  right  sufficiently  established  at  law;  threat- 
ened nuisance.  He  who  seeks  an  injunction  against  a  nuisance 
is  not  regarded  as  having  sufficiently  established  his  rights  at 
law  by  obtaining  a  judgment,  if  the  action  in  which  the 
judgment  was  recovered  is  still  pending  upon  a  writ  of 
review.^  ^  Nor  will  equity  interfere  to  restrain  a  nuisance 
unless  it  has  undivided  jurisdiction  over  the  whole  litigation, 
and  where  some  of  the  questions  in  dispute  are  pending  in 
actions  at  law,  an  injunction  will  not  be  allowed.i^  But 
where  plaintiff*  has  obtained  a  judgment  at  law  against  de- 
fendants for  a  nuisance  affecting  his  real  property,  and  sub- 
stantial damages  have  been  awarded  him,  it  is  almost  a 
matter  of  course  for  equity  then  to  enjoin  the  continuance 
of  the  nuisance.^-'  And  especially  will  the  relief  be  granted 
in  such  case  where  the  nuisance  is  a  continuing  one  and  the 

ir.  Wahle  V.  Reinbach,  76  111.,  322;  698,  as  to  the  relaxation  of  the  rule 

Village    of    Dwight   v.    Hayes,    150  in    cases    of    injunctions    against 

111.,  273,  37  N.  E.,  218,  41  Am.  St.  trespass. 

Rep.,   367;     City    of    Kewanee    v.  "^  City  of  Kewanee  r.  Otley,  204 
Otley,  204  111.,  402,  68  N.  E.,  388;  111.,  402,  68  N.  E.,  388. 
White    V.    Forbes,    Walk.    (Mich.),  it  Eastman   v.   Amoskeag   Manu- 
112;      Hundley    v.    Harrison,     123  facturing  Co.,  47  N.  H..  71. 
Ala.,   292,  26  So.,   294;    Sprague  v.  i^  Eastman   v.   Amoskeag    Mann- 
Rhodes,  4  R.  I.,  301;  Pennsylvania  facturing  Co.,  47  N.   H.,  71. 
R.  Co.  /;.  New  York  &  U  B.  R.  Co..  ':•  Tipping  d.  St.  Helen's    Smelt- 
8  C.   E.   Green,   157      See,   ayite.   §  ing  Co.,  L.  R.  1  Ch..  66. 


CHAP.  XIII.]  AGAINST  NUISANCE.  705 

damages  recovered  at  law  are  nominal  and  therefore  inade- 
quate to  prevent  a  repetition  of  the  wrong.-*^  And  when  there 
has  been  an  action  at  law  and  a  reference  to  arbitration  and 
an  award  in  favor  of  plaintiff's  right,  he  will  be  regarded  as 
having  sufficiently  established  his  right  at  law  to  warrant  an 
injunction  against  the  nuisance.^i  So  if  plaintiff's  right  is 
clear  and  the  injury  is  manifest  and  of  a  constantly  recurring 
nature,  the  relief  may  be  granted  without  requiring  the  fact 
of  injury  to  be  determined  by  an  action  at  law.22  And  where 
the  acts  which  it  sought  to  restrain  will  clearly  result  in  a 
nuisance  and  are  not  denied  or  disavowed  by  the  defendant, 
and  the  danger  is  threatened  and  impending,  preventive  relief 
by  injunction  will  be  granted  although  the  nuisance  does 
not  yet  exist  in  fact.^^ 

§742,  Injunction  denied  when  nuisance  uncertain;  illus- 
trations. When  the  injury  complained  of  is  not,  per  se,  a  nui- 
sance, but  may  or  may  not  become  so,  according  to  circum- 
stances, and  when  it  is  uncertain,  indefinite  or  contingent,  or 
productive  of  only  possible  injury,  equity  will  not  interfere.^* 

20  Paddock  v.  Stone,  102  Mo.,  moth,  Freem.  Ch.,  505;  McCutchea 
226,  14  S.  W.,  746,  10  L.  R.  A.,  254.  v.  Blanton,  59  Miss.,  116;  Thebaut 

21  Imperial  Co.  v.  Broadbent,  7  v.  Canova,  11  Fla.,  143;  Shivery  v. 
H.  L.,  600.  Streeper,  24  Fla.,  103,  3   So.,  865; 

22  Learned  v.  Hunt,  63  Miss.,  373.  Rhodes  v.  Dunbar,  57  Pa.  St.,  274; 

23  Pierce  v.  Gibson  County,  107  Simpson  v.  Justice,  8  Ired.  Bq., 
Tenn.,  224,  64  S.  W.,  33,  55  L.  R.  115;  Dorsey  y.  Allen,  85  N.  C.  358; 
A.,  477,  89  Am.  St.  Rep.,  946.  Maysville   &   Mt.    S.    T.   R.    Co.   v. 

24  Kirkman  v.  Handy,  11  Humph.,  Ratliff,  85  Ky.,  244,  3  S.  W.,  148; 

406;    Laughlin  v.  President,  6  Ind.,  Pfingst  v.  Senn,  94  Ky.,  556,  23  S. 

223;  Keiser  v.  Lovett,  85  Ind.,  240;  W.,  358;  Duncan  v.  Hayes,  7  C.  B. 

Bowen  v.  Mauzy,  117  Ind.,  258,  19  Green,  25;    Hemsley  v.  Bew,  53  N. 

N.  E.,  526;    Dunning  v.  Aurora,  40  J.   Eq.,  241,  31  Atl.,  210;     Earl  of 

111.,    481;     Lake   View   v.   Letz,    44  Ripon  v.  Hobart,  3  Myl.  &  K.,  169; 

111.,  81;    Thornton  v.  Roll,  118  111.,  S.     C,     Coop.    t.    Brougham,    333; 

350,   8  N.   E.,  145;     Bell  v.  Riggs,  Mohawk  v.  Utica,    6    Paige,    554; 

38  La.  An.,  555;    Rouse  c.  Martin,  Morgan    v.   City     of    Binghamton, 

75  Ala.,  510;    Rounsaville  v.  Kohl-  102    N.    Y.,     500,     7     N.     B.,     424; 

heim,   68   Ga.,   668;    Gwin   v.   Mel-  Fletcher  v.  Bealey,  28  Ch.  D.,  688; 

45 


706 


INJUNCTIONS. 


[CHAr.  XIII. 


Chambers  v.  Cramer,  49  West  Va., 
395,  38  S.  E.,  691,  54  L.  R.  A.,  545. 
Mohawk  v.  Utica,  6  Paige,  554,  was 
a  bill  for  an  injunction  to  restrain 
defendants  from  the  erection  of  a 
railroad  bridge  over  the  Mohawk 
river  below  complainant's  bridge, 
one  ground  upon  which  relief  was 
asked  being  that  the  proposed 
erection  would  endanger  the  safety 
ot  complainant's  bridge  by  dam- 
ming up  the  ice.  Walworth,  Chan- 
cellor, says:  "The  principles  upon 
which  this  court  should  proceed 
in  granting  or  refusing  relief  by 
injunction  in  cases  of  this  kind, 
are  correctly  laid  down  by  Lord 
Brougham  in  the  recent  case  of  the 
Earl  of  Ripon  v.  Hobart  (Cooper's 
Rep.  Temp.  Brougham,  333).  If 
the  thing  sought  to  be  prohibited 
is  in  itself  a  nuisance,  the  court 
will  interfere  to  stay  irreparable 
mischief,  where  the  complainant's 
right  is  not  doubtful,  without  wait- 
ing for  the  result  of  a  trial.  But 
where  the  thing  sought  to  be  re- 
strained is  not  in  itself  noxious, 
but  only  something  which  may  ac- 
cording to  circumstances  prove  to 
be  so,  the  court  will  refuse  to  in- 
terfere until  the  matter  has  been 
tried  at  law  by  an  action;  though 
in  particular  cases  the  court  may 
direct  an  issue,  for  its  own  satis- 
faction, where  an  action  could  not 
be  brought  in  such  a  form  as  to 
meet  the  question."  And  in  the 
Earl  of  Ripon  v.  Hobart,  3  Myl.  & 
K.,  169,  to  which  reference  is  here 
made  by  Chancellor  Walworth, 
Lord  Brougham  observes:  "If  the 
thing  sought  to  be  prohibited  is  in 
itself  a  nuisance,  the  court  will 
interfere   to   stay   irreparable   mis 


chief  without  waiting  for  the  re- 
sult of  a  trial;  and  will,  accord- 
ing to  the  circumstances,  direct  an 
issue  or  allow  an  action,  and,  if 
need  be,  expedite  the  proceedings, 
the  injunction  being  in  the  mean- 
time continued.  But,  where  the 
thing  sought  to  be  restrained  is 
not  unavoidably  and  in  itself  nox- 
ious, but  only  something  which 
may  according  to  circumstances 
prove  so,  the  court  will  refuse  to 
interfere,  until  the  matter  has 
been  tried  at  law,  generally  by  an 
action,  though  in  particular  cases 
an  issue  may  be  directed  for  the 
satisfaction  of  the  court,  where  an 
action  could  not  be  framed  so  as 
to  meet  the  question.  The  distinc- 
tion between  the  two  kinds  of  erec- 
tion or  operation  is  obvious,  and 
the  soundness  of  that  discretion 
seems  undeniable,  which  would  be 
very  slow  to  interfere,  where  the 
thing  to  be  stopped,  while  it  is 
highly  beneficial  to  one  party,  may 
very  possibly  be  prejudicial  to 
none.  The  great  fitness  of  paus- 
ing much  before  we  interrupt 
men  in  those  modes  of  enjoying 
or  improving  their  property,  which 
are  prima  facie  harmless  or  even 
praiseworthy,  is  equally  manifest. 
And  it  is  always  to  be  borne  in 
mind  that  the  jurisdiction  of  this 
court  over  nuisance  by  injunction 
at  all,  is  of  recent  growth,  has  not 
till  very  lately  been  much  exer- 
cised, and  has  at  various  times 
found  great  reluctance  on  the  part 
of  the  learned  judges  to  use  it, 
even  in  cases  where  the  thing  or 
the  act  complained  of  was  admit- 
ted to  be  directly  and  immedi- 
ately hurtful   to   the  complainant. 


CHAP.  XIII.] 


AGAIXST  NUISANCE. 


707 


Thus,  the  erection  of  a  wharf,--'^  a  railroad  bridge,^^  a  planing 
mil],27  a  stable,-^  a  cotton  gin,2»  a  blacksmith  shop,^^  a  beer 
garden  with  boAvling  alleys  and  dance  hall,^^  a  toll-gate,^^ 
a  livery  stable,^^  or  a  turpentine  distillery ,3^  will  not  be 
enjoined  when  the  injury  is  only  a  possible  and  contingent 
one.  So,  too,  the  relief  will  be  withheld  where  the  bene- 
fit to  the  public  to  be  derived  from  the  existence  of  the 
thing  complained  of  outweighs  the  private  inconvenience, 
since  the  injury  to  one  family  or  person  will  not  be  allowed 
to  counter-balance  the  public  benefit.^^  And  if,  in  addition 
to  the  danger  being  remote,  the  right  is  also  doubtful,  the 
injunction  will  not  be  granted.^''  So  the  relief  will  not  be 
allowed  in  the  absence  of  clear  and  conclusive  proof  that  the 


All  that  has  been  said  in  the  cases 
where  this  unwillingness  has  ap- 
peared, may  be  referred  to  in  sup- 
port of  the  proposition  which  I 
have  stated;  as  in  the  Attorney- 
General  t\ 'Nichol,  16  Ves.,  338; 
Attorney-General  v.  Cleaver,  18 
Ves.,  211;  and  an  anonymous  case 
before  Lord  Thurlow,  in  1  Ves. 
Jr.,  140,  and  others.  It  is  also  very 
material  to  observe,  what  is  indeed 
strong  authority  of  a  negative 
kind,  that  no  instance  can  be  pro- 
duced of  the  interposition  by  in- 
junction in  the  case  of  what  we 
have  been  regarding  as  eventual  or 
contingent  nuisance." 

-5  Laughlin  v.  President,  6  Ind., 
223. 

26  Mohawk  Bridge  Co.  v.  Utica 
Co.,  6  Paige,  554. 

2T  Rhodes  V.  Dunbar,  57  Pa.  St., 
274. 

2s  Rounsaville  v.  Kohlheim,  68 
Ga.,  668;  Shivery  v.  Streeper,  24 
Fla.,  103,  3  So.,  865. 

-'■>  Rouse  V.  Martin,  75  Ala.,  510. 


"o  Bowen  v.  Mauzy,  117  Ind.,  258, 
19  N.  E.,  526;  Chambers  i\  Cra- 
mer, 49  West  Va.,  395,  38  S.  E.,  691, 
54  L.  R.  A.,  545. 

31  Pfingst  r.  Senn,  94  Ky.,  556, 
23  S.  W.,  358. 

:*2  Maysville  &  Mt.  S.  T.  R.  Co.  v. 
Ratliff  85  Ky.,  244. 

•■!•;  Kirkman  v.  Handy,  11  Humph., 
406. 

■^■i  Simpson  v.  Justice,  8  Ired.  Eq., 
115. 

-5  Attorney-General  v.  Perkins,  2 
Dev.  Eq.,  38;  Same  v.  Lea's  Heirs. 
3  Ired.  Eq.,  302;  Wilder  r.  Strick- 
land, 2  Jones  Eq.,  386;  Daughtry 
V.  Warren,  85  N.  C,  136;  Hewett 
V.  Western  Union  T.  Co.,  4  Mackey, 
424.  See  also  Dorsey  r.  Allen,  85 
N.  C,  358.  And  an  injunction  has 
been  refused  which  was  sought  to 
restrain  the  lighting  of  the  streets 
of  a  city  with  naphtha.  Anderson 
V.  Mayor,  69  Ga.,  472. 

as  Mayor  v.  Curtiss,  Clarke  Ch., 
336. 


708  iNJCNCTioxs.  [chap.  xiri. 

injury  is  permanent  and  irreparable  and  where  the  acts  com- 
plained of  are  onh'  temporary.^"  It  is  also  held  that  complain- 
ant must  show  that  the  act  from  which  he  seeks  relief  is 
illegal,  before  equity  will  interfere.^^ 

§  743.  The  same.  Where  an  injunction  is  asked  to  restrain 
the  construction  of  works  of  such  a  nature  that  it  is  impossi- 
ble for  the  court  to  know,  until  they  are  completed  and  in 
operation,  whether  they  will  or  will  not  constitute  a  nuisance, 
the  writ  will  be  refused  in  the  first  instance."^  Xor  in  such 
a  case  will  the  motion  for  an  interlocutory  injunction  be 
allowed  to  stand  over  until  the  work  is  so  far  executed  that 
its  character  may  be  determined. ^'^  It  is  proper,  however, 
under  such  circumstances  to  dismiss  the  bill  without  preju- 
dice to  any  further  application  which  plaintiffs  may  think 
themselves  entitled  to  make.^^ 

§744.  Injunction  refused  when  facts  uncertain;  when  bill 
dismissed  without  prejudice.  In  eases  of  conflicting  evidence 
as  to  the  fact  of  a  nuisance  it  is  proper  to  refuse  an  injunc- 
tion in  limine,  imtil  the  question  of  nuisance  can  be  finally  de- 
termined by  a  verdict.  For  example,  when  it  is  sought  to 
enjoin  a  mill  owner  from  permitting  the  ebb  and  flow  of  water 
below  his  mill  caused  by  the  stopping  and  opening  of  his 
gates,  the  bill  alleging  that  malaria  is  thereby  caused  and  sick- 
ness in  the  family  of  complainant,  and  averring  that  the 
iealth  of  the  neighborhood  has  become  so  impaired  that 
-visitors  no  longer  come  to  certain  mineral  springs  upon 
complainant's  premises,  if  the  facts  are  conflicting  and  un- 
certain upon  the  affidavits  introduced,  it  is  proper  to  refuse 
an  injunction  until  after  verdict,  especially  when  the  griev- 
ance has  continued  for  a  number  of  years.*-     And  a  defend- 

37  Nelson  r.   Mulligan,    151    111.,  Rouse  t:  Martin,  75  Ala.,  510.    See 

462,  38  N.  E.,  239.  also  Adams  v.  Michael,  38  Md.,  123. 

3«  Bruce   r.   President,   19   Barb.,        *"  Haines  r.  Taylor,  2  Ph.,  209. 
371.  *i  Adams  r.  Michael.  38  Md.,  123. 

30  Haines  i.  Taylor,  2   Ph.,  209;         <-' Nelms  v.  Clark.  44  Ga.,  617. 


CHAP.  XIII.]  AGAINST  NUISANCE.  709 

ant  will  not  be  enjoined  from  sowing  upon  his  own  land, 
adjoining  that  of  plaintiff,  a  peculiar  species  of  grass  seed 
alleged  to  be  injurious  and  likely  to  render  plaintiff's  land 
useless,  when  the  testimony  is  conflicting  as  to  the  nature 
and  eft'ect  of  such  seed,  leaving  the  court  in  doubt  as  to  the 
fact  of  nuisance.**'^  So  the  relief  will  be  refused  when  sought 
by  a  city  to  restrain  the  enlargement  of  a  building  alleged 
to  be  in  violation  of  a  building  ordinance  of  the  city,  when 
such  construction  is  not  a  nuisance  in  fact  and  will  not  oc- 
casion irreparable  injur}'. "*^  And  while  the  bill  should  be 
dismissed  if  the  evidence  is  conflicting  and  the  nuisance  un- 
certain, yet  if  the  acts  complained  of  may  subsequently 
develop  into  a  nuisance,  the  dismissal  should  be  without 
prejudice.*^ 

§  745.  Remedy  at  law  a  bar  to  injunction.  Notwithstand- 
ing the  well  established  jurisdiction  of  equity  to  enjoin  the 
erection  of  nuisances,  and  the  fact  that  in  some  cases  the 
relief  is  even  extended  to  the  abatement  of  the  nuisance,  the 
existence  of  a  legal  remedy  will  be  held  sufficient  ground 
for  withholding  an  injunction.  Thus,  when  a  full  and  com- 
plete legal  remedy  is  provided  by  a  statute  authorizing 
courts  of  law  to  give  judgment  of  abatement  in  actions  for 
damages  incurred  by  private  nuisances,  a  court  of  equity 
may  refuse  to  entertain  an  action  to  enjoin  and  abate 
such  a  nuisance.'*^  So  when  a  summary  remedy  is  pro- 
vided by  statute  for  the  abatement  by  the  municipal  au- 
thorities of  cities  of  all  nuisances,  public  and  private, 
a  court  of  equity  may  properly  refuse  to  interfere  by 
injunction,  when  no  obstacle  is  shown  in  the  way  of 
proceedings  at  law.*^     And  a  drinking  saloon  doing  business 

43  McCutchen     r.      Blanton.      59     158  111.,  21,  42  N.  E.,  77. 

Miss.,  116.  46  Remington  v.  Foster,  42  Wis. 

44  Mayor  v.  Smyth,  64  N.  H.,  380,     608. 

10  Atl.,  700.  4-  Powell   r.   Foster,  50  Ga.,  790, 

45  Robb  r.  Village  of  La  Grange, 


710  iNJUxcTioxs.  [chap.  xiir. 

in  a  city  in  violation  of  law,  although  a  nuisance,  will  not 
be  enjoined  when  ample  remedy  is  provided  by  law  for  its 
abatement.^^  And  it  may  be  said  generally,  that  the  aid  of 
an  injunction  will  not  be  extended  for  the  prevention  of  a 
nuisance  when  it  does  not  satisfactorily  appear  that  the 
person  aggrieved  is  without  adequate  remedy  at  law.'*^  So 
equity  will  not  enjoin  an  encroachment  by  defendant  upon 
premises  claimed  by  plaintiff,  when  the  title  to  the  premises 
upon  which  the  alleged  nuisance  is  to  be  erected  is  in  dis- 
pute and  is  claimed  by  both  parties,  and  when  adequate 
relief  may  be  afforded  by  an  action  of  ejectment.^*^  It  is, 
however,  to  be  observed  that  the  fact  that  the  commission 
of  the  threatened  act,  which  it  is  sought  to  enjoin  as  a  nui- 
sance, may  be  punished  criminally  as  such  will  not  prevent 
the  exercise  of  the  restraining  power  of  equity .^^ 

§  746,  Difficulty  of  abating  nuisance.  A  court  of  equity 
will  not  be  deterred  from  the  exercise  of  its  jurisdic- 
tion in  restraint  of  nuisance  because  of  the  difficulty 
or  expense  attending  the  removal  by  defendants  of  the 
nuisance  in  question.  It  is  proper,  however,  where 
the  difficulties  of  such  removal  are  very  great,  on 
granting  the  injunction  to  suspend  its  operation  for  a  given 
time  to  enable  defendants  to  make  the  necessary  arrange- 
ments for  removing  the  nuisance.^-  Or  the  court  may  refuse 
1h('  injunction  altogether  and  enter  a  decree  simply  finding 
and  declaring  the  plaintiff' 's  rights,  with  leave  to  the  plain- 
ts state  V.  Crawford,  28  Kan.,  N.  E.,  514;  People's  Gas  Co.  r. 
726.  Tyner,  131  Ind.,  277,  31  N.  E.,  59, 

■*■>  Parker  v.  Winnipiseogee  L.  C.     16  L.  R.  A.,  443,  31  Am.  St.  Rep., 
&  W.  Co.,  2  Black,  54.'j.  433;     Columbian   Athletic    Club    v. 

50  Morris  C.  &  B.  Co.  v.  Fagin,  7     State,  143   Ind.,   98,  40  N.  E.,  914, 
C.  E.  Green,  430.  28  L.  R.  A.,  728,  52  Am.  St.  Rep., 

■-'i  People  V.  St.  Louis,    5    Gilm.,     407. 
351 ;     Attorney-General  v.   Hunter,        •>-  Attorney-General      v.      Colony 
1  Dev.  Eq.,  12;  Gilbert  v.  Morris  C.     Hatch    Lunatic    Asylum,   L.   R.    4 
&  B.  Co.,  4  Halst.  Ch.,  495;    Cran-     Ch.,  146. 
ford  V.  Tyrrell,  128  N.  Y.,  341,   28 


CHAP.  XIII.]  AGAINST  NUISAKCE.  711 

tiff  to  apply  for  an  injunction  if  the  nuisance  shall  not  be 
abated  by  the  defendant  within  a  reasonable  time  named  by 
the  court.^^ 

§  747.  Prohibition  of  business  by  municipal  authorities. 
While  equity  will  not  interfere  by  injunction  with  the 
legitimate  exercise  of  the  powers  conferred  by  law  upon 
municipal  authorities  for  tlie  abatement  of  nuisances,  it 
may  interpose  its  aid  to  prevent  such  authorities  from  pro- 
hibiting a  citizen  from  conducting  a  legitimate  business 
which  is  not  necessarily  a  nuisance,  and  which  may  be  car- 
ded on  in  a  city  without  injury  or  danger  to  the  public 
health.  And  where,  without  notice  to  complainant  who  is 
engaged  in  the  business  of  curing  hides  in  a  city,  the  mu- 
nicipal board  of  health  absolutely  prohibit  him  from  carry- 
ing on  his  business,  an  injunction  is  proper  to  restrain  the 
board  from  enforcing  such  prohibition  while  the  business  is 
not  conducted  as  a  nuisance.^^  Where,  however,  a  board  of 
municipal  officers,  such  as  the  board  of  health  of  a  city, 
are  fully  empowered  by  law  to  prohibit  the  exercise  within 
the  city  of  any  oft'ensive  or  dangerous  trade  or  employ- 
ment, or  any  nuisance,  and  the  board,  duly  acting  within 
the  scope  of  their  authority,  have  prohibited  the  exercise 
of  an  offensive  trade,  the  city  may  then  maintain  a  bill  to 
enjoin  the  continuance  of  such  trade.  And  upon  such  a 
bill  the  action  of  the  board  of  health  in  determining  that 
the  trade  in  question  is  a  nuisance  may  be  taken  as  quasi- 
judicial,  and  not  open  to  review  in  a  court  of  equity.^^ 

§  748.  Erection  of  wooden  buildings ;  conflict  of  author- 
ity. Although  the  jurisdiction  of  equity  to  prevent  by 
injunction  the  erection  or  maintenance  of  nuisances  is,  as 
we   have  already  seen,  undoubted,   the   courts   are   neverthe- 

53  Vestry  of  Islington  v.  Horn-  ^^  Taunton  v.  Taylor,  116  Mass., 
sey  Council,  (1900)  1  Ch.,  695.  254. 

54  Weil  V.  Ricord,  9  C.  E.  Green, 
169- 


712  INJUNCTIONS.  [chap.  XIII. 

less  inclined  to  limit  its  exercise  to  cases  of  nuisance  per  se, 
and  not  to  extend  the  relief  to  enjoining  structures  which 
are  merely  prohibited  by  municipal  regulation.^"  And  where 
a  village  ordinance  prohibits  the  erection  of  wooden  build- 
ings within  certain  specified  limits,  imposing  a  penalty  for 
violation  of  the  ordinance,  and  also  provides  that  the  pres- 
ident and  trustees  of  the  village  shall  cause  any  person 
violating  the  ordinance  to  be  enjoined  by  a  court  of  com- 
petent jurisdiction,  an  injunction  will  not  be  granted  to 
prevent  the  erection  of  wooden  buildings  in  violation  of 
the  ordinance.^'''  And  the  provision  in  the  ordinance  direct- 
ing the  officers  to  proceed  by  injunction  in  such  case  in  no 
manner  extends  or  enlarges  the  jurisdiction  of  the  court, 
and  the  municipal  authorities  will  be  left  to  seek  their  rem- 
edy at  law  for  a  violation  of  the  ordinance.^^  The  reason- 
ing of  the  authorities  which  hold  thus  is  that  since  a  wooden 
building  is  not  in  itself  a  nuisance,  the  mere  fact  that  the 
erection  of  such  a  building  is  prohibited  by  ordinance  does 
not  render  it  one;  and  that  the  remedy,  if  any,  of  the  pub- 
lic authorities  for  a  violation  of  the  ordinance  is  by  the 
enforcement  of  the  penalties  provided  by  it.  A  diff^erent 
conclusion,  however,  has  been  reached  by  other  courts  and 
it  has  accordingly  been  held  that  where  the  erection  or 
removal  of  wooden  buildings  within  certain  limits  is  pro- 
hibited by  municipal  ordinance,  the  relocation  of  such  a 
building  contrary  to  the  provisions  of  the  ordinance  and 
so  near  plaintiff's  property  as  to  increase  his  fire  risk  may 
be  enjoined  as  a  nuisance  by  a  property  owner  who  is  thus 
specially  damaged  thereby.^-*     And  where  it  is  provided  by 

•'•*=  President     and      Trustees     v.  See  also  Mayor  ;;.  Smyth,  64  N.  H., 

Moore,     34     Wis.,     450;     Mayor  v.  380.  10  Atl.,  700. 

Thome,    7   Paige,    261;    Village    of  •'^^«  President     and      Trustees     v. 

St.  .Johns  V.  McFarlan,  33  Mich.,  72.  Moore,  34   Wis.,  450. 

r-T  President     and     Trustees     v.  •'■"  Kaufman  v.   Stein,    138    Ind., 

Moore,  34  Wis.,  450;  Village  of  St.  49,  37  N.  E.,  333,  46  Am.  St.  Rep., 

.Johns   V.  Mcl'^rlan,  33    Mich.,   72.  368.    To  the  same  effect  see  dicta 


CHAP.  Xlll.]  AGAINST  NUISANCE.  713 

ordinance  that  no  wooden  building  shall  be  moved  within 
certain  limits  without  the  consent  of  a  majority  of  the  front 
foot  ownership  in  the  block,  the  removal  of  such  a  building 
without  the  required  frontage  consent  will  be  enjoined  at 
the  suit  of  an  adjoining  or  neighboring  property  owner  who 
suffers  special  damage.*'^  But  when  a  body  of  commissioners, 
appointed  by  the  executive  authority  of  the  state,  and  hav- 
ing no  authority  to  exercise  the  power  of  local  legislation, 
attempt  by  an  ordinance  to  abate  as  a  nuisance  that  which  is 
not  such  at  common  law,  their  action  may  be  enjoined.^i 

§  749.  Abatement  and  damages  in  statutory  action.  When 
it  is  provided  by  statute  that  in  an  action  to  recover 
damages  for  a  nuisance  the  nuisance  may  be  enjoined  or 
abated  as  well  as  damages  be  recovered,  the  abatement 
and  injunction  do  not  follow  the  recovery  of  damages  as 
a  matter  of  course,  but  their  allowance  rests  in  the  sound 
judicial  discretion  of  the  court.  And  where,  in  an  action 
under  such  statute  to  recover  damages  for  a  nuisance  re- 
sulting to  plaintiff's  land  from  the  overflowing  of  defend- 
ant's mill-dam,  the  issues  are  submitted  to  a  jury,  to  warrant 
an  injunction  there  should  be  a  specific  finding  as  to  how 
much  of  defendant's  dam  should  be  abated  and  enjoined  in 
order  to  relieve  plaintiff's  land  from  unlawful  flowage.'^- 

§  750.  Construction  of  ditch.  In  conformity  with  the 
general  doctrine  that  equity  will  not  enjoin  where  there  is  an 
adequate  remedy  at  law,  the  owners  of  real  estate  are  not 
entitled  to  an  injunction  against  the  construction  of  a  ditch 
by  an  adjacent  owner  upon  the  ground  that  it  will  destroy  a 
ditch  upon  plaintiff's  premises,  when  a  method  is  provided 
by  statute  for  the  assessment  of  benefits  and  damages  in  such 
cases.**'^ 

in  First  National   Bank   r.    Sarlls,  '^i  Schuster  r.  Metropolitan  Board 

129  Ind.,  201,  28  N.  E.,  434,  13  L.  R.  of  Health,  49  Barb.,  450. 

A.,  481,  28  Am.  St.  Rep.,  185.  >■■-  Pinch  v.  Green,  16  Minn.,  355. 

60  Griswold  v.  Brega,  160  111.,  490,  «:i  pioughe  v.  Beyer,  38  Ind.,  113. 
43  N.  E.,  864,  52  Am.  St.  Rep.,  350. 


714  INJUNCTIONS.  [chap.  XIII. 

§  751.    Throwing"    surface     water     upon     adjacent     lands. 

AVhile  the  owner  of  real  estate  may  properly  use  and 
cultivate  it  in  accordance  with  good  husbandry,  even  if 
in  so  doing-  he  interferes  with  the  natural  flow  of  surface 
water  passing  over  his  own  land,  and  increases  or  dimin- 
ishes the  amount  which  would  otherwise  reach  the  land  of 
an  adjoining  proprietor,  yet  a  land  owner  has  no  right  by 
the  construction  of  ditches  and  embankments,  or  other 
artificial  structures  of  a  like  character,  to  collect  the  sur- 
face waters  from  his  own  lands  or  those  of  other  persons, 
and  to  precipitate  them  upon  the  lands  of  an  adjacent 
owner,  to  the  great  injury  of  the  latter;  and  the  remedy  by 
injunction  is  well  established  for  such  grievance.'^'*  And  the 
fact  that  plaintiff,  in  such  case,  does  not  upon  the  hearing 
prove  the  injury  to  the  full  extent  charged  in  his  bill  will 
not  prevent  him  from  obtaining  relief.^-'"'  So  relief  may  be 
granted  against  the  diversion  of  waters  from  their  natural 
channels  by  artificial  means  at  the  suit  of  the  public  authori- 
ties, such  as  commissioners  of  highways  or  drainage  com- 
missioners having  jurisdiction  over  the  subject-matter 
affected  by  the  nuisance.'^*^  And  while  a  property  owner  is 
■compelled  to  submit  to  the  burden  resulting  from  the  ordi- 
nary and  natural  flow  of  surface  w^aters  upon  and  over  his 
land  through  natural  channels  and  watercourses,  yet  where 
the  municipal  authorities  are  proceeding  by  artificial  means 
to  divert  unusual  quantities  of  surface  water  from  surround- 
ing lands  and  to  discharge  it  by  such  artificial  means  upon  the 
lands  of  complainant  in  a  greatl}^  increased  volume  and  in 
quantities  greatly  in  excess  of  the  natural  flow,  to  the  de- 
sti-iictioii    or   serious    injury   of   such    land,    their    action    may 

«■' Hicks  r.  Silliraan,  93  111.,  255;  <5<' Dayton  r.  Drainage  Commis- 
Graham  v.  Keene,  143  111.,  425,  32  sioners,  128  111.,  271,  21  N.  E.,  198; 
N.  E.,  180;  Peters  v.  Lewis,  28  Davis  v.  Commissioners  of  High- 
Wash.,  366,  68  Pac,  869.  ways,    143    111.,    9,   33     N.     E.,     58. 

'■'■•  Hicks  r.  Silliman.  93  111.,  255. 


CHAP.  XIII.]  AGAIXST  NUISANCE.  715 

be  restrained  by  injunction.*'^  And  the  fact  that  plaintiff's 
land  is  subjected  to  the  burden  of  the  drainage  of  other 
lands  will  not  justify  such  additional  imposition.*'^  So  a  rail- 
way company  may  be  enjoined  from  maintaining  a  ditch 
along  its  road-bed  in  such  manner  as  to  turn  the  water  from 
its  natural  course,  causing  it  to  overflow  plaintiff's  land  to 
his  serious  injury.*'*'  And  where  a  railway  company  has 
removed  an  open  trestle  forming  part  of  its  right  of  way 
over  a  stream  and  in  its  place  has  built  a  solid  stone  culvert 
containing  an  opening  so  small  as  to  be  entirely  inadequate 
to  permit  the  passage  of  the  water  at  times  of  heavy  rains, 
thus  seriously  injuring  plaintiff's  lands  by  the  overflow,  relief 
by  injunction  will  be  allowed.'''*'  And  when  the  nuisance  con- 
sists in  the  obstruction  of  the  natural  flow  of  a  stream,  where- 
by plaintiff's  lands  are  inundated,  an  injunction  may  be  al- 
lowed although  it  is  not  shown  that  defendant  is  insolvent."^ 
And  where  two  adjacent  tracts  of  land  are  so  situated  that 
the  upper  tract  has  a  natural  easement  or  servitude  in  the 
lower  for  the  discharge  of  all  surface  water,  the  owner  of  the 
servient  estate  ma}'  be  restrained  from  the  erection  of  an 
embankment  upon  his  land  whereby  the  water  is  thrown 
back  upon  the  upper  tract  and  its  natural  flow  obstructed."- 
And  where  defendant  brings  water  upon  his  land  by  arti- 
ficial means,  a  portion  of  which  percolates  through  the  soil 
to  plaintiff's   land,   rendering  it  useless,   relief  by  injunction 

G'  Soule  V.  City  of  Passaic,  47  N.  cs  Soule  v.  City  of  Passaic,  47  N. 

J.   Eq.,   28,   20  Atl.,  346;     Miller   v.  J.  Eq.,  28,  20  Atl.,  346. 

Mayor  of  Morristown,  47  N.  J.  Eq.,  c-'  G.  H.  &  S.  A.  R.  Co.  v.  Tait,  63 

62,  20  Atl.,  61;    Whipple  v.  Village  Tex.,  223. 

of  Fair  Haven,  63  Vt.,  221,  21  Atl.,  to  Lake    Erie    &    W.    R.     Co.    v. 

533;    Patoka  Township  v.  Hopkins,  Young,  135  Ind.,  426,  35  N.  E.,  177, 

131  Ind.,  142,  38  N.  E.,  96,  31  Am.  41  Am.  St.  Rep.,  430. 

St.   Rep.,  417;     Young  r.   Commis-  7i  Moore  v.  Chicago,  B.   &  Q.  R. 

sioners  of  Highways,  134  111.,  569,  Co.,  75  Iowa,  263,  39  N.  W.,  390. 

25  N.  E.,  689;    Jewett  i:  Sweet,  178  ^2  Nininger  v.  Norwood,  72  Ala.. 

111.,  96,  52  N.  E.,  962.  277.     But  see  Crabtree  v.  Baker,  75 

Ala.,  91. 


716  INJUNCTIONS.  [chap.  XIII. 

may  be  allowed."^  But  the  erection  by  defendant  of  an 
embankment  upon  his  own  land  as  a  protection  against  the 
overflow  of  a  non-navigable  river  dividing  his  land  from 
that  of  plaintiff,  which  may  result  in  throwing  such  overflow 
upon  plaintitt"'s  land,  will  not  be  restrained  upon  general 
averments  of  irreparable  injury,  and  when  sufficient  remedy 
exists  by  an  action  at  law  for  dam^ges.'^  And  to  entitle 
the  plaintifl:'  to  relief  against  the  diversion  of  waters,  a  strong 
case  of  irreparable  injury  must  be  presented,  and  the  relief 
will  be  denied  where  the  evidence  as  to  the  injury  is  con- 
flicting and  it  is  not  certain  that  any  damage  will  result  to 
the  plaintilf  from  the  alleged  nuisance  complained  of."^ 

§752.  Lawful  business  not  enjoined;  criminal  liability  no 
bar  to  relief.  Where  the  injury  complained  of  is  such  only  as 
is  incident  to  a  lawful  business  conducted  in  the  ordinary 
way,  equity  will  not  interfere.  Thus,  an  injunction  has 
been  refused  against  the  injury  and  annoyance  caused  by 
the  smoke  from  semi-bituminous  coal  used  in  the  production 
of  iron,  it  being  used  in  the  usual  course  of  such  business, 
and  it  appearing  that  greater  injury  would  result  from 
granting  than  from  withholding  the  relief,  and  where  such 
injury  as  might  result  could  be  adequately  compensated  in 
damages.'^"  And  where  defendant  disclaims  the  intention 
of  continuing  the  nuisance,  and  is  using  due  diligence  for 
its  removal,  the  injunction  will  be  refused.'^^  But  the  fact 
that  the  act  threatened  might  be  punished  criminally  as  a 
nuisance  will  not  prevent  the  exercise  of  the  restraining 
power  of  equity."'^  And  the  continued  displaying  of  ban- 
ners  in   front   of   plaintifl^ 's   place    of   business,    with    inscrip- 

-••!  Parker  r.  Larsen,  86  Cal.,  236;  -''Richard's   Appeal,    57    Pa.    St., 

24  Pac.  989,  21  Am.  St.  Rep.,  30.  105. 

- 1  Blaine  r.   Brady,   64    Md.,  373,  •  ■  King  r.  Morris,  3  C.  E.  Green, 

1    Atl.,  609.  397. 

"Hotz  V.  Hoyt,  135  111.,  388,  25  unpeople  r.  St.  Louis,  5  Gilm., 
N.  E.,  753. 


CHAP.  XIII. J  AGAINST  NUISANCE,  717 

tions  warning   workmen   not   to   enter  his   empioy,   has   been 
enjoined  as  a  nuisance.'^^ 

§  753.  Right  to  lateral  support  protected.  The  right  to 
lateral  support  is  regarded  as  an  incident  to  the  ownership 
of  land,  and  its  infringement  has  been  considered  as  a  nui- 
sance which  equity  may  enjoin.  Thus,  the  removal  and  ex- 
cavation of  earth  upon  adjacent  premises  in  such  manner  as 
to  endanger  the  stability  of  complainant's  soil  and  fences,  by 
removing  their  lateral  support,  will  be  enjoined.**" 

§  754.  Burning  wooded  lands.  Equity  will  not  interfere 
by  injunction  to  prevent  land  owners  from  burning  off 
wooded  lands  which  are  unenclosed,  at  undue  seasons  of  the 
year,  and  in  violation  of  the  penal  laws  of  the  state,  when 
plaintiff  claims  no  title  to,  or  prescriptive  right  in  the  prem- 
ises, the  only  right  asserted  by  him  being  a  common  of  pas- 
ture for  his  cattle,  which  have  been  accustomed  to  range  in 
the  woods.^i 

§  755.  Exclusive  right  of  slaughtering  animals.  Where 
the  legislature  of  a  state,  in  the  exercise  of  its  police 
power,  has  designated  certain  places  for  the  slaughtering 
of    animals,    prohibiting     their     slaughter    at    other    places, 

351;  Attorney-General  v.  Hunter,  1  In   this   case   the    opinion    of    the 

Dev.  Eq.,  12;   Cranford  v.  Tyrrell,  court,  although    somewhat   obiter, 

128  N.  Y.,  341,  28  N.  E.,  514;  Gilbert  would  seem  to  imply  that  the  doc- 

V.  Morris  C.  &  B.  Co.,  4  Halst.  Ch.,  trine  is  to   be  confined  strictly  to 

495;  People's  Gas  Co.  v.  Tyner,  131  those  cases  where  the  owner  of  the 

Ind.,  277,  31  N.  E.,  59,  16  L.  R.  A.,  land  has  not,  by  building  or  other- 

443,  31  Am.  St.  Rep.,  433;    Colum-  wise,  increased  the  lateral  pressure 

bian    Athletic    Club    v.    State,    143  upon   the    adjoining     soil;      since, 

Ind.,  98,  40  N.  E.,  914,  28  L.  R.  A.,  when  the  owner  of  the  land  has  er- 

728,  52  Am.  St.  Rep.,  407.  ected   buildings  upon  the  edge    of 

Ta  Sherry  r.   Perkins,  147   Mass.,  his  soil,  he  himself  is  regarded  as 

212,  17  N.  E.,  307.  in  fault. 

80  Trowbridge  v.  True,  52  Conn.,         «i  Harrell    v.   Hannum,     56     Ga., 

190;  Farrand  (;.  Marshall,  19  Barb.,  508. 
380;    Same  v.  Same,  21  Barb.,  409. 


718  INJUNCTIONS.  [chap.  XIII. 

and  lias  chartered  an  incorporated  company  for  carry- 
ing into  effect  such  legislation,  conferring  upon  the  company 
thus  incorporated  the  exclusive  right  to  maintain  a  slaughter 
house  within  a  particular  city,  the  state  may,  upon  a  bill 
filed  by  its  attorney-general,  enjoin  persons  from  interfering 
with  the  execution  of  such  law,  and  from  doing  any  of  the 
acts  prohibited  thereby .^- 

§756.  Effect  of  acquiescence  and  delay;  effect  of  release; 
hindrance  by  plaintiff.  Long  continued  acquiescence  in  the 
erection  of  works  which  it  is  afterwards  sought  to  enjoin  as  a 
nuisance  may  constitute  a  bar  to  relief.^^  And  it  may  be  as- 
serted as  a  rule  that  long  delay  upon  the  part  of  plaintiff'  who 
seeks  to  enjoin  a  nuisance  will  afford  sufficient  reason  for 
refusing  him  relief  in  equity.^^  The  rule  is  extended  even 
further,  and  it  is  held  that  one  party  may  so  encourage  another 
in  the  erection  of  what  he  afterward  complains  of  as  a  nui- 
sance, as  not  only  to  deprive  the  aggrieved  party  of  the 
right  to  equitable  relief,^^  but  to  give  the  adverse  party 
a  right  to  invoke  the  aid  of  equitj^  to  restrain  proceed- 
ings at  law  for  the  recovery  of  damages  resulting  from  the 
alleged  nuisance.*^^"'  So  when  plaintiff",  in  compromise  of  an 
action  to  recover  damages  from  an  alleged  nuisance,  has 
released  defendant  from  all  right  of  action  on  account  there- 
of, he  is  thereby  estopped  from  enjoining  the  maintenance 
of  the  alleged  nuisance.^"  And  where  the  defendant  has  made 
proper  efforts  to  abate  the  nuisance  complained  of  but  has 
been  thwarted  in  his  attempts  by  the  acts  of  the  plaintiff', 
relief  against  the  nuisance  will  be  denied."^^ 

"-  State    r.    Fagan,     22     La.    An.,  '^«  Williams    v.   Jersey,    1    Cr.    &. 

545.  Ph.,   91. 

^^i  Wood  r.  Sutcliffe,  2  Sim.  N.  S..  '^^  Kennerty  r.  Etiwan  P.  Co.,  17 

163.  S.  C,  411. 

"'Wicks  /•.  Hunt,  John.,  372.  ><«  Richardson  r.  City  of  Eureka,. 

«•'•.  Huntington  &  K.  L.  D.  Co.  r.  110  Cal.,  441,  42  Pac,  965. 
P.   P.  Mfg.  Co.,   40  West  Va.,  711, 
21  S.  E.,  1037. 


CHAP.  XIII.]  AGAINST  NUISANCE.  719' 

§  757.  Joinder  of  parties.  Upon  the  question  of  the  joinder 
of  parties  in  proceedings  to  restrain  a  private  nuisance,  it  is 
held  that  where  the  grievance  is  common  to  several  different 
property  owners,  they  may  unite  in  one  action  for  an  in- 
junction.'^'' And  in  such  case  it  is  not  necessary  that  the 
grievance  complained  of  shall  affect  all  of  the  plaintiffs  pre- 
cisely at  the  same  instant  and  in  the  same  degree,  if  they  are 
affected  in  the  same  general  period  of  time  and  in  a  similar 
way,  so  that  the  same  relief  may  be  had  by  all  in  a  single 
suit.^°  It  is  to  be  observed,  however,  that  the  joinder  in 
such  case  is  permissive  merely,  the  various  property  owners 
being  proper  but  not  necessary  parties.  One  owner,  there- 
fore, can  not  sue  upon  behalf  of  all  others  similarly  situated 
and  the  latter  can  not  be  bound  by  the  result  of  another's 
separate  action.''^  And  a  court  of  equity  wnll  not  upon  a  bill 
by  one  co-tenant  enjoin  his  co-tenants  from  keeping  a  saloon 
upon  the  common  property,  when  no  special  injury  is  shown 
to  be  sustained  by  plaintiff  which  is  not  suffered  by  the  pub- 
lic, and  when  the  bill  fails  to  allege  any  immediate  and 
threatened  injury.^-  And'  where  it  is  sought  to  enjoin  a  nui- 
sance to  a  public  highway,  a  property  owner  who  abuts  upon 
the  highway  at  such  a  distance  from  the  erection  or  obstruc- 
tion complained  of  as  to  suffer  no  injury  different  in  kind 
from  that  sustained  by  the  public  generally,  is  not  a  proper 

80  Foot  r.  Bronson,  4  Lans.,  47;  416;   Town  of  Sullivan  v.  Phillips. 

Gillespie  v.  Forrest,  18  Hun,  110;  110  Ind.,  320,  11  N.  E.,  300;    Hart 

Snyder  v.  Cabell,  29  West  Va.,  48,  v.  Buekner,  5  C.  C.  A.,  1,  54  Fed., 

1   S.   B.,  241;    Lonsdale   v.   City  of  925;    Pettibone     v.     Hamilton,     40 

Woonsocket,  21  R.  I.,  498,  44  Atl.,  Wis.,  402. 

929;  Rowbotham  v.  Jones,  47  N.  J.         9o  Rowbothana  r.  Jones,  47  N.  J. 

Eq.,  337,  20  Atl.,  731,  19  L.  R.  A.,  Eq.,  337,  20  Atl.,  731,   19  L.  R.  A.. 

663;   Attorney-General  v.  Mayor  of  663. 

Paterson,  58  N.  J.  Eq.,  1,  42  Atl.,         si  Linden   Land  Co.  v.   M.  E.  R. 

749;  First  National  Bank  v.  Sarlls,  &  L.  Co.,  107  Wis.,  493,  83  N.  W.,. 

129   Ind.,  201,  28  N.  E.,  434,  13  L.  851. 

R.  A.,  481,   28   Am.    St.   Rep.,   185.         02  Oglesby  Coal   Co.  v.  Pasco,  79- 

See  also  Reid  r.  Gifford,  Hopk.  Ch.,  111.,  164. 


720 


INJUNCTIONS. 


[chap.  XIII. 


party    complainaut   to    maintain   a    bill    to    enjoin    such    uui- 
sance.^^ 

§758.  When  injunction  perpetuated;  when  made  manda- 
tory. At  the  final  hearing  upon  bill  and  answer,  if  it  is 
apparent  from  the  pleadings  that  defendants  are  about  to  do 
some  act  charged  in  the  bill,  which  if  permitted  would  con- 
stitute a  nuisance  injurious  to  complainants,  the  preliminary 
injunction  should  be  made  perpetual.'**^  So  when  the  nui- 
sance consists  in  the  erection  of  a  building  upon  ground 
adjacent  to  premises  occupied  by  plaintiff,  upon  and  over 
which  he  has  an  easement  which  has  been  established  at 
law,  lie  is  entitled  upon  final  hearing  to  a  mandatory  in- 
junction to  remove  and  abate  so  much  of  the  building  as 
prevents  the  enjoyment  of  his  rights.'^^ 


'J3  City  of  Chicago  v.  Union 
Building  Association,  102  111.,  379; 
Parker  l\  Catholic  Bishop,  146  111., 
158,  34  N.  E.,  473;  Guttery  i\  Glenn, 
201  111.  275,  66  N.  E.,  305;  McGee's 
Appeal,  114  Pa.  St.,  470.  8  Atl., 
237;  Kinnear  Mfg.  Co.  r.  Beatty, 
65  Ohio  St.,  264,  62  N.  E.,  341; 
Shaubut  V.  St  Paul  &  S.  C.  R.  Co., 
21  Minn.,  502;  Gundlach  v.  Hamm, 


62  Minn.,  42,  64  N.  W.,  50.     And 
see,  ante,  §  594  and,  post,  §  1301. 

9-1  Attorney-General     v.   Steward, 
6  C.  E.  Green,  340. 

95  Stanford  v.  Lyon,  37  N.  J.  Eq. 
94.  See  S.  C,  7  C.  E.  Green,  33. 
where  a  preliminary  injunction 
was  refused  because  plaintiff  had 
not  established  his  right  at  law. 


CHAP.  X11I.|  AGAINST  NUISANCE.  721 


II.     Public  Nuisances. 

§  759.     Purpresture  defined. 

760.  Piers;   wharves;   embankments  of  canal;   public  lands;   manda- 

tory injunction. 

761.  Remedy  at  law. 

762.  Right  of  private  person  to  enjoin  public  nuisance. 

763.  The  doctrine  illustrated. 
763a.  Further  illustrations. 

764.  Distinction   between   information   by   attorney-general  and   bill 

by  citizen. 

765.  Floating  elevator  in  harbor. 

766.  Obstruction   of  navigable   river   by   dam. 

767.  Effect  of  legislative  sanction. 

768.  Obstruction  of  water  in  city;  obstruction  of  square;  prize-fights. 

769.  Violation  of  private  right  necessary. 

770.  Navigable  creek;   pendency  of  criminal  proceedings. 

771.  Adverse  user  no  bar  to  relief. 
771a.  "Wasting  of  natural  gas. 

§  759.  Purpresture  defined.  One  of  the  earliest  recognized 
forms  of  public  nuisance  with  which  equity  has  interfered 
is  that  of  purpresture.  A  purpresture  was  formerly  held  to 
be  a  close  or  enclosure,  or  in  other  Avords  an  encroachment 
whereby  one  person  makes  several  to  himself  that  which  ought 
to  be  common  to  the  public. ^  The  later  acceptance  of  the  term, 
however,  is  that  of  an  encroachment  upon  the  rights  of  the 
sovereign,  either  by  trespassing  on  his  soil,  or  upon  ease- 
ments, such  as  highways,  bridges,  and  public  rivers.-  And 
a  still  narrower  signification  has  been  given  to  the  term  by 
limiting  it  to  an  encroachment  upon  the  soil  of  the  sea- 
shore, or  other  tidal  waters  belonging  to  the  sovereign, 
between  high  and  low  water  mark.-^  The  jurisdiction  of 
equity  in  cases  of  purpresture,  as  well  as  of  public  nuisances 
generally,    rests    in    the    necessity    of   preventing    irreparable 

12  Coke  Inst.,  38,  272.  Paige,     554;     Attorney-General     i\ 

-  New   Orleans  v.  United   States,     Cohoes  Company,  6  Paige,  133. 
10  Pet.,   662;    Mohawk  v.  Utica,  G        :•  Attorney-General    r.    Chamber- 
lane,  4  Kay  &  J.,  292. 
49 


722  INJUNCTIONS.  [chap.  XIII. 

mischief  and  avoiding  vexatious  litigation.  The  equitable 
remedy  is  more  efficacious  than  the  remedy  at  law,  since  it 
has  the  effect,  not  only  of  abating  nuisances  already  exist- 
ing, but  of  restraining  those  which  are  threatened  or  in 
progress.-*  But  a  public  nuisance,  such  as  will  justify  relief 
by  injunction,  can  not  arise  from  an  act  which  is  expressly 
authorized  by  statute.^ 

§  760.  Piers ;  wharves ;  embankments  of  canal ;  public  lands ; 
mandatory  injunction.  The  unauthorized  erection  of  a  pier  in 
a  public  harbor  is  a  purpresture  which  will  be  restrained  by 
injunction  at  the  suit  of  the  attorney-general.*'  And  such  an 
erection  will  be  regarded  as  a  nuisance  per  se,  and  will  be 
enjoined  without  evidence  to  show  that  it  would,  if  erected, 
be  a  nuisance  in  fact.'^  So  the  unauthorized  erection  of  a 
pier  in  a  lake,  the  title  to  the  submerged  lands  being  in  the 
state  in  trust  for  the  public,  may  be  enjoined  as  a  purpres- 
ture in  an  information  in  equity  by  the  attorney-general, 
although  the  obstruction  does  not  in  fact  amount  to  a  nui- 
sance.^ So  the  obstruction  of  a  navigable  river,  by  a 
wharf  owner  driving  piles  into  the  bed  of  the  river  and 
extending  his  wharf  so  as  to  occupy  a  space  of  three 
feet,  out  of  a  width  of  sixty  feet  available  for  navigation 
may  be  enjoined.^  But  where  it  clearly  appears  that  the 
erection  of  a  pier  or  wharf  in  tidal  waters,   and  upon   soil 

4  2  Story's  Eq.,  §  924;   Attorney-  city     from     obstructing  plaintiff's 

General  v.  Johnson,  2  Wils.  Ch.,  87;  wharf  and  cutting  him  off  from  ac- 

Township    of    Hutchinson   v.   Filk,  cess  to  the  navigable  waters  upon 

44  Minn.,  536,  47  N.  W.,  255.  which    his    wharf   is    situated,    see 

•'•  Hewett   V.   Western    Union    T.  Crocker  v.   City   of  New  York,  15 

Co.,  4  Mackey,  424.  Fed.,  405. 

6  People  /;.  Vanderbilt,  28  N.  Y.  «  Revell  i'.  The  People,  177  111.,. 
396,  affirming  S.  C,  38  Barb.,  282;  468,  52  N.  E.,  1052,  43  L.  R.  A., 
Davis  r.  Mayor,  4  Kern.,  526;  Peo-  790,  69  Am.  St.  Rep.,  257;  Gordon 
pie  r.  N.  Y.  &  S.  I.  F.  Co.,  68  N.  Y.,  r.  Winston,  181  111.,  338,  54  N.  E., 
71,  modifying  and  affirming  S.  C,  1095. 

7  Hun,  105.  •'  Attorney-General  v.  Terry,  L..  R. 

7  People  r.  Vanderbilt.  38    Barb.,     9  Ch.,  423. 
282.     As  to  the  right  to  enjoin  a 


CHAP.  XIII.]  AGAINST  NUISANCE,  723 

thereunder,  belonging  to  the  state,  would  not  constitute 
a  public  nuisance,  and  Avould  not  prove  injurious  to  the 
harbor  or  to  the  people  of  the  state,  an  injunction  should 
not  be  allowed.^*^  Where,  however,  the  structure  pro- 
posed would  hinder  navigation,  it  will  not  avail  defend- 
ant to  urge  that  the  benefit  to  the  public  counterbalances 
the  inconvenience.^  1  But  to  warrant  an  injunction  against 
an  alleged  purpresture  or  public  nuisance  it  must  clearly 
appear  that  it  is  such  in  fact ;  and  if  it  be  doubtful  whether 
there  is  a  purpresture  the  relief  will  be  withheld.^-  It  is 
held  that  in  cases  of  doubt  the  question  as  to  the  existence 
of  the  nuisance  should  be  determined  by  a  jury  before 
granting  the  injunction.^  ^  And  where  that  issue  has  been 
settled  at  law  by  the  acquittal  of  the  defendant  by  a  jury 
in  an  indictment  for  the  maintenance  of  a  public  nuisance, 
relief  will  be  denied.^  ^  But  any  unauthorized  appropria- 
tion of  public  property  to  private  uses,  amounting  to  a  pur- 
presture or  public  nuisance,  is  within  the  jurisdiction  of 
equity  to  enjoin.  And  the  cutting  through  the  embank- 
ments of  a  public  canal  to  draw  off  water  for  defendant's 
mills  comes  within  the  rule  and  will  be  restrained.!^  So  a 
riparian  owner  upon  a  navigable  river,  owning  to  the  line 
of  high  water  mark,  may  be  enjoined  from  erecting  a 
wharf  or  pier  in  front  of  his  premises  and  between  high, 
and  low  water  mark,  at  the  suit  of  a  municipal  corpora- 
tion which   is  vested  with  the   exclusive   right   to   construct 

10  People  V.  Davidson,  30  Cal.,  i3  Attorney-General  r.  Cohoes,  6 
379.  And  see  Engs  v.  Peckham,  Paige,  133;  Mohawk  v.  Utica,  6 
11  R.  I.,  210.  But  see,  contra,  Paige,  554;  Attorney-General  v. 
Revell  V.  The  People,  177  111.,  468,  Cleaver,  18  Ves.,  217. 

52   N.   E.,   1052,   43   L.   R.   A.,   790,  i-*  Commonwealth    r.    Croushore, 

69  Am.  St.  Rep.,  257.  145  Pa.  St.,  157,  22  Atl.,  807.  And 

11  Rex  V.  Ward,  4  A.  &  E.,  386.  see,  ante,  §  740. 

12  Attorney-General  v.  Delaware  i"' Attorney-General  v.  Cohoes,  6 
&   B.    R.    Co.,    12    C.    E.    Green,   1.  Paige,  133. 

See  also  Harlan  &  H.  Co.  r.  Pas- 
chall,  5  Del.  Ch.,  435. 


724  INJUNCTIONS.  [chap.  xiir. 

wharves  within  the  corporate  limits."^  Aud  the  unauthor- 
ized enclosure  by  private  citizens  of  public  lands  of  the  state 
constitutes  such  a  purpresture  as  may  be  enjoined  at  the 
suit  of  the  attorney-general.  And  in  such  case  it  is  proper 
to  grant  a  mandatory  injunction  to  compel  the  removal  of 
the  illegal  obstruction.''^ 

§  761.  Remedy  at  law.  Though  the  jurisdiction  of  equity 
in  restraint  of  public  nuisances  is  well  established/*  it  will 
not  be  exercised  where  the  object  sought  can  be  as  well  at- 
tained in  the  ordinary  tribunals/*^  unless  upon  the  application 
of  one  who  suffers  a  personal  injury  aside  from  the  injury  to 
the  public,  in  which  case  an  injunction  may  be  allowed,  even 
though  there  is  a  remedy  at  law  by  abatement  of  the  nuis- 
ance and  indictment  of  the  offender.-*^  And  equity  will 
not  entertain  a  bill  filed  by  the  attorney-general  to  abate 
a  public  nuisance  where  the  state  has  created  local  boards 
and  has  delegated  to  them  ample  power  to  redress  the 
grievances  complained  of.-' 

§  762.  Right  of  private  person  to  enjoin  public  nuisance. 
No  principle  of  the  law  of  injunctions  is  more  clearly 
established  than  that  private  persons,  seeking  the  aid 
of  equity  to  restrain  a  public  nuisance,  must  show  some 
special  injury  peculiar  to  themselves,  aside  from  and  inde- 
pendent of  the  general  injury  to  the  public.  And  in  the 
absence  of  such  special  and  peculiar  injury  sustained  by  a 

16  Ravenswood    r.    Flemings,    22  Co.  r.  Prudden,  5  C.  E.  Green,  530; 

West  Va.,  52.  Attorney-General   v.    Brown,    9     C. 

Instate  V.   Goodnight,    70    Tex.,  E.  Green,  89;   Inhabitants  of  Rari- 

682.     See   also     United     States    /;.  tan  v.  P.  R.  R.  Co.,  49  N.  J.  Eq., 

Brighton  Ranche  Co.,  25  Fed.,  465;  11,  24  Atl.,  127. 

S.   C,  26  Fed.,  218;    United  States  -;'>  Ewell   r.  Greenwood,   26- Iowa. 

V.  Cleveland  &  C.  C.   Co.,  33  Fed.,  377.    But  the  injury  must  be  great 

323.  and  the  necessity  pressing.  Morris 

Instate  V.   Mayor,  5  Port.,    279;  &   E.   R.    Co.   v.   Prudden,   5   C.    R 

Water  Commissioners  r.  Hudson,  2  Green.  530. 

Beas.,  420.  -i  People    r.    Equity    Gas    Light 

1"  Water  Commissioners  r.   Hud-  Co.,  141   N.  Y.,  232.  36  N.  E.,  194. 
son,  2  Beas.,   420;    Morris  &  E.   R. 


CHAP.  Xlll.]                              AGAINST  NL'lSAXCl-:.  725 

private  citizen  he  will  be  denied  an  injunction,  leaving  the 
public  injury  to  be  redressed  upon  information  or  other 
suitable  proceeding  by  the  attorney-general  in  behalf  of 
the  public.--     Even  in  cases  of  unquestioned  nuisance,  if  the 

^^  Bigelow     V.    Hartford     Bridge  Springer  v.   Walters,   139    111.,   419, 

Co.,  14  Conn.,  565;   O'Brien  r.  Nor-  28  N.  E.,  761;    Pittsburg,  F.  W.  & 

wich  &  W.  R.  Co.,  17  Conn.,  372;  C.  R.  Co.  v.  Cheevers,  149  111.,  430, 

Frink  v.  Lawrence,  20  Conn.,  117;  37  N.  E.,  49,  24  L.  R.  A.,  156;  Clii- 

Doolittle  V.  Supervisors,  18  N.  Y.,  cago   Gen.   Ry.   Co.  v.   C,  B.   &   Q. 

160;   Corning  v.  Lowerre,  6  Johns.  R.  Co.,  181  111.,  605,  54  N.  E.,  1026; 

Ch.,  439;   Adler  v.  Met.  Bl.  R.  Co.,  Guttery  v.  Glenn,   201   111.,  275,  6(> 

138  N.  Y.,  173,  33  N.  E.,  935;  Allen  N.  E.,  305;  Schall  v.  Nusbaum,  56 
V.  Board,  2  Beas.,  68;  Illinois  Com-     Md.,  512;   Coast  Line  R.  Co.  v.  Co- 

pany    v.    St.    Louis,     2     Dill.,     70;  hen,  50  Ga.,  451;  Redway  v.  Moore, 

Hinchman  i:  Paterson  H.  R.  Co.,  2  3  Idaho,  312,  29  Pac,  104;  Ruffner 

C.    E.    Green,    75;    Van     Home    v.  v.  Phelps,   65  Ark.,  410,  46  S.  W., 

Newark   P.   R.    Co.,  48   N.    J.    Eq.,  728;   Hill  v.  Pierson,  45  Neb.,  503, 

332,  21  Atl.,  1034;   Perkins  v.  M.  &  63  N.  W.,  835;  Esson  v.  Wattier,  25 

C.  T.  Co.,  48  N.  J.  Eq.,  499,  22  Atl.,  Ore.,   7,    34    Pac,    756;    Rhymer   v. 

180;    Morris    &    Essex    R.     Co.    v.  Fretz,  206  Pa.  St.,  230,  55  Atl.,  959; 

Newark   P.    R.    Co.,   51   N.   J.    Eq.,  Cherry  v.  City  of  Rock  Hill,  48  S. 

379,  29  Atl.,  184;    Mechling  v.  Kit-  C,  553,   26   S.   E.,   798;    Manson  v. 

tanning  Bridge  Co.,  1  Grant's  Cases,  S.  B.  R.  Co.,  64  S.  C,  120,  41  S.  C, 

416;    Beveridge  v.  Lacey,  3  Rand.,  832.    And  in  this  respect  a  railroad 

63;    Dawson  v.   St.    Paul   F.   &   M.  company,   although   a    quasi-public 

Ins.  Co.,  15  Minn.,  136;    Gundlach  corporation  performing  public  serv- 

V.  Hamm,  62  Minn.,  42,  64  N.  W.,  ices  stands  upon  the  same  footing 

50;  "Walker  v.  Shepardson,  2  "Wis.,  as  a  private  individual.     Morris  &" 

384;  Barnes  v.  Racine,  4  "Wis.,  454;  Essex  R.  Co.  v.  Newark  P.  R.  Co., 

Williams   v.   Smith,    22   AVis.,   594;  51  N.  J.  Eq.,  379,  29  Atl.,  184.    And 

Hay  V.  Weber,  79  Wis.,  587,  48  N.  in  Higbee  v.  Camden  &  A.  R.  &  T. 

W.,    859,    24    Am.    St.     Rep.,     737;  Co.,  4  C.  E.  Green,  276,  it  is  said 

Kuehn   v.    City    of    Milwaukee,    83  that  a  bill  by  private  persons  is  a 

Wis.,  583,  53  N.  W.,  912,  18  L.  R.  proper  remedy  so  far  as    the    in- 

A.,    553;    Ewell    v.    Greenwood,    26  jury  to  complainants  is  a  personal 

Iowa,    377;    Prince     v.    McCoy,    40  or    peculiar   injury,   and     not    one 

Iowa,  533;  Green  v.  Lake,  54  Miss.,  shared   by   them    in   common  with 

540;     Engs    (•.    Peckham,   11   R.    I.,  the  public,  but  no  further.  But  see, 

210;  Bosworth  ;;.  Norman,  14  R.  I.,  contra,    Whitfield     v.     Rogers,     25 

521;    Palmer    v.    Logansport   &    R.  Miss.,   84.     As   to  the  right    of    a 

C.  G.  R.  Co.,  108  Ind.,  137,  8  N.  E.,  municipal   board   of  health,   under 

905;    Seager   v.  Kankakee  Co.,  102  the  laws  of  New  York,  to  enjoin  a 

III.,  669;   City  of  Chicago  v.  Union  public  nuisance,  see  Gould  r.  City 

Building  Association,  102  111.,  379;  of  Rochester,  105  N.  Y.,  46,  12  N. 


726 


INJUNCTIONS. 


[chap.  XIII,. 


party  complaining  shows  no  special  injury  to  himself  dif- 
ferent from  the  common  injury  to  the  public,  he  is  not  en- 
titled to  an  injunction. -2  In  accordance  with  these  principles, 
w^here  it  is  made  to  appear  after  injunction  granted  that 
the  injury  suffered  by  complainant  is  sustained  by  him  in 
common  with  every  taxpayer,  and  the  damage  is  therefore 
not  special  or  peculiar,  the  injunction  will  be  dissolved.^^ 
And  where  the  injury  is  doubtful  and  the  evidence  conflict- 
ing the  relief  will  generally  be  wnthheld.-^  And  especially 
will  the  relief  be  denied  where,  in  addition  to  the  plaintiff's 
failure  to  show  some  special  damage,  it  appears  that  his 
title  is  in  doubt  and  is  denied  by  the  defendant.2*5  It  is  held, 
however,  that  the  fact  that  proceedings  have  been  or  may  be 
taken  by  the  attorney-general  in  behalf  of  the  people  to 
restrain  a  public  nuisance  will  not  prevent  an  individual, 
who  sustains  a  special  injury,  from  obtaining  the  relief.-'^ 
But  it  w^ill  not  suffice  that  the  person  complaining  merely 
shows  a  violation  of  his  rights,  but  he  must  show  such  a 
violation   as   is   or   will   be    attached   Avith   serious   damage.-^ 


E.,  275.  As  to  the  right  of  a  pri- 
vate citizen  to  enjoin  the  sale  of 
intoxicating  liquors  as  a  nuisance, 
under  the  statutes  of  Iowa,  see  Lit- 
tleton V.  Fritz,  65  Iowa,  488,  22  N. 
W.,  641;  Pontius  v.  Winebrenner, 
65  Iowa,  591,  22  N.  W.,  646;  Sher- 
merhorn  r.  Webber,  67  Iowa,  278, 
25  N.  W.,  160;  Martin  v.  Blattner, 
68  Iowa,  286,  25  N.  W.,  131,  27  N. 
W.,  244. 

23  Hinchman  v.  Paterson  H.  R. 
Co.,  2  C.  E.  Green,  75;  Shed  v. 
Hawthorne,  3  Neb.,  179. 

^+  Allen  V.  Board,  2  Beas.,  68. 

a-'  Earl  of  Ripon  v.  Hobart,  3 
Myl.  &  K.,  169;  S.  C,  Coop.  t. 
Brougham,  333;  Hamilton  r.  New- 
York,  9  Paige,  171 ;  Springer  v. 
Walters,  139  111.,  419,  28  N.  E.,  761. 


-I'  Lownsdale  r.  Gray's  H.  B.  Co., 
117  Fed.,  983. 

27  Attorney-General  v.  Johnson,  2 
Wils.  Ch.,  87;  Attorney-General  t\ 
Forbes,  2  Myl.  &  Cr.,  123;  Cook  v. 
Mayor,   L.   R.   6   Eq.,  177. 

-^  Bigelow  r.  Hartford  Bridge 
Co.,  14  Conn.,  565.  This  was  a  bill 
in  equity  brought  by  the  owner  of 
buildings  and  land  above  a  cause- 
way which  had  been  swept  away. 
to  restrain  defendant  from  rebuild- 
ing the  causeway.  It  appearing 
that  no  special  injury  was  threat- 
ened to  complainant's  right,  and 
that  the  injury  and  inr-onvenience 
resulting  to  him  from  the  erection 
of  the  causeway  would  be  small 
and  not  capable  of  appreciation,  it 
was  held  that  the  injunction  ought 


C'lIAl'.  XIII.] 


AGAINST  NUISANCE. 


727 


§  7G3.  The  doctrine  illustrated.  As  illustrating  the  general 
doctrine  above  stated,  denying  relief  by  injunction  against 
public  nuisances  in  behalf  of  private  citizens  who  suffer  no 
special  or  peculiar  injury  different  from  that  which  is  iiv 
flicted  upon  the  public  by  the  grievance  in  question,  it  is  held 
that  a  private  citizen  can  not  enjoin  the  closing  up  of  public 
streets,  when  he  shows  no  peculiar  injury  personal  to  himself 
as  the  result  of  the  act  proposed.-^  So  a  private  citizen,  own- 
ing a  wharf  adjacent  to  navigable  waters,  can  not  restrain 
defendants  from  committing  a  purpresture,  such  as  filling  up 
a  dock  adjoining  plaintiff's  wharf,  when  he  has  no  private 
right  or  easement  in  the  dock  itself,  the  fee  being  in  the 
state.^*'  And  a  mining  and  transportation  company  will  not 
be  allowed  to  restrain  the  erection  of  a  grain  elevator  upon 


to  be  refused.  Storrs,  J.,  says: 
"Of  whatever  character  it  is  req- 
uisite that  the  injury  complained 
of  should  be,  in  order  to  lay  the 
foundation  for  this  remedy,  it  is 
necessary  that  it  should  be  a  sub- 
stantial and  not  merely  a  technical 
or  inconsequential  injury.  There 
must  not  only  be  a  violation  of  the 
plaintiff's  rights,  but  such  a  viola- 
tion as  is  or  will  be  attended  with 
actual  and  serious  damage.  Even 
although  the  injury  may  be  such 
that  an  action  at  law  would  lie  for 
damages,  it  does  not  follow  that  a 
court  of  equity  would  deem  it 
proper  to  interpose  by  the  sum- 
mary, peculiar  and  extraordinary 
remedy  of  injunction.  Spencer  v. 
London  &  Birmingham  Railway 
Company,  8  Simons,  193.  It  is 
obviously  not  fit  that  the  power  of 
that  court  should  be  invoked,  In 
this  form,  for  every  theoretical  or 
speculative  violation  of  one's 
rights.  Such  an  exercise  of  it  would 


not  only  be  wide  from  the  object  of 
investing  those  courts  with  that 
power,  but  would  render  them  en- 
gines of  oppression  and  vexation, 
and  bring  them  into  merited 
odium.  It  is  a  power  which  is  ex- 
traordinary in  its  character,  and  to 
be  exercised  generally  only  in  cases 
of  necessity,  or  where  other  rem- 
edies may  be  inadequate,  and  even 
then  with  great  discretion  and  care- 
fulness. It  is  a  salutary,  and  in- 
deed a  necessary  power  when  con- 
fined within  those  safe  limits  in 
which  it  has  been  exercised;  but 
capable  of  being  made  an  instru- 
ment of  oppression,  and  therefore 
to  be  extended,  if  it  all,  with  great 
circumspection.  Earl  of  Ripon  r. 
Hobart,  3  Mylne  &  Keene,  169." 

29  Prince  v.  McCoy,  40  Iowa,  533. 

30  Engs  v.  Peckham,  11  R.  I.,  210. 
And  doubt  is  expressed  by  the 
court  as  to  whether  any  person  but 
the  state  can  proceed  by  injunction 
against  a  purpresture. 


728  INJUNCTIONS.  [chap.  XIII. 

a  public  wharf,  to  which  the  company  shows  no  right  or  in- 
terest.^i  So  when  it  is  sought  to  enjoin  the  hiying  of  a 
street  railway  upon  a  public  street,  the  fact  that  one  of  the 
plaintiffs  is  a  lot  owner  upon  the  street  gives  him  no  special 
right  and  subjects  him  to  no  special  injury  which  entitles 
him  to  an  injunction,  a  street  railway  not  being  a  nuisance 
per  se.^^  And  in  such  a  case  it  is  not  sufficient  ground  for 
awarding  an  injunction  in  behalf  of  such  lot  owner  to  al- 
lege generally  that  his  lot  will  be  injured  by  the  proposed 
construction,  but  the  facts  should  be  shown  from  which  the 
injury  may  be  established.-"*^  Moreover  the  injury  complained 
of  must  differ  not  merely  in  degree  but  in  kind  from  that 
which  is  sustained  by   the   public   generally.^^ 

§  763  a.  Further  illustrations.  As  further  illustrating  the 
principle  under  discussion,  relief  has  been  denied  where  a 
private  individual  who  was  accustomed  with  many  others  to 
fish  in  the  waters  of  a  lake,  sought  to  enjoin  a  city  from 
destroying  the  fishing  industry  in  the  locality  by  dumping 
garbage  into  the  lake  •,^^  to  enjoin  the  maintainance  of  a 
gambling  house,  relief  being  sought  by  a  non-resident  ;2*''  to 
enjoin  the  maintenance  of  a  toll-gate  in  a  public  highway  ;37 
to  enjoin  the  municipal  authorities  from  changing  a  public 
highway  in  such  a  way  as  to  make  it  more  circuitous  for 
the    plaintiff  ;^^    to    enjoin    the    unauthorized    granting    of    a 

;ii  Illinois  Company  r.  St.  Louis,  Cheevers,    149    ill.,    430,   37    N.    E., 

2  Dill.,  70.  49,  24  L.  R.  A.,  156;  Kinnear  Mfg. 

:'2  Coast  Line  R.  Co.  v.  Cohen,  50  Co.  v.  Beatty,  65  Ohio  St.,  264,  62  N. 

Ga.,  451;  Van  Home  v.  Newark  P.  E.,  341. 

R.  Co.,  48  N.  J.  Eq.,  332,  21   Atl.,  -'s  Kuehn    v.   City  of   Milwaukee, 

1034;    Placke  v.   Union   D.   R.   Co.,  83  Wis.,  583,  53  N.  W.,  912,  18  L. 

140  Mo.,  634,  41  S.  W.,  915.  R.  A.,  553. 

•13  Coast  Line   R.   Co.    (;.    Cohen,  ^'^  Hill  v.   Pierson,   45    Neb.,   503, 

50  Ga.,  451;  Placke  v.  Union  D.  R.  63  N.  W.,  8v)5. 

Co.,  140  Mo.,  634,  41  S.  W.,  915.  ^^  Perkins  v.  M.  &  C.  T.  Co.,  48 

••■•  Hay  r.  Weber,  79  Wis.,  587,  48  N.  .L  Eq.  499,  22  Atl.,  180. 

N.   W..  859,  24  Am.  St.  Rep.,  737;  ''s  Cherry  v.   City  of   Rock   Hill, 

Pittsburg,   F.  W.   &   C.   R.    Co.     v.  48  S.  C,  553,  26  S.  E.,  798. 


CHAP.  XIII.]  AGAINST  NUISANCE.  729 

liquor  license  i^^  to  enjoin  hackmen  and  cabmen  from  crowd- 
ing upon  the  sidewalk  in  front  of  plaintiff's  railroad  depot 
for  the  purpose  of  soliciting  the  patronage  of  its  passengers;*^ 
ya  all  of  which  cases,  and  in  numerous  others,  the  relief  is 
denied  because  of  the  failure  of  the  plaintiff  to  show  any 
damage  to  himself  or  to  his  property  which  differs  in  kind 
from  that  suffered  by  the  public  generally. 

§  764.  Distinction  between  information  by  attorney-general 
and  bill  by  citizen.  "When  proceedings  are  had  to  enjoin  a 
public  nuisance,  such  as  the  pollution  of  a  river  by  a  board 
of  municipal  officers  in  violation  of  an  act  of  parliament 
under  which  they  are  acting,  a  distinction  is  drawn,  as  to  the 
necessity  of  proving  an  actual  injury,  between  the  case  of 
an  information  filed  by  the  attorney-general  in  behalf  of 
the  public,  and  a  bill  filed  by  private  citizens  in  their  own 
behalf.  And  in  the  former  case  it  is  held  to  be  unnecessary 
for  the  attorney-general  to  establish  any  actual  injury,  the 
statute  having  prohibited  the  act  complained  of;  while  in 
the  latter  case  it  is  held  to  be  necessary  for  plaintiffs  to 
prove  that  the  act  which  they  seek  to  enjoin  is  in  fact  a 
nuisance.'*^  So  the  proper  public  officers  may  enjoin  the 
unlawful  obstruction  of  a  public  highway  irrespective  of 
the  question  of  the  damage  inflicted."*-  But  the  rule  as  thus 
announced  has  been  limited  to  cases  of  relief  sought  upon 
final  hearing  and  it  has  accordingly  been  held  that  an  injunc- 
tion should  not  be  granted  upon  an  interlocutory  application 
unless  substantial  injury  to  the  public  be  shown.'*^ 

§  765.  Floating  elevator  in  harbor.  The  use  by  defendants 
of  a  floating  elevator  in  a  canal  or  basin  forming  part  of  the 

sflNast  V.  Town  of  Eden,  89  bury  Bridge  Co.,  21  Ch.  D.,  752. 
Wis.,  610,  62  N.  W.,  409.  And    see   Attorney-General    v.    Ac- 

40  Pittsburg,  F.  W.   &  C.   R.  Co.     ton  Local  Board,  22  Cli.  D..  221. 

V.  Cheevers,  149  111.,  430,  37  N.  E.,  42  Smith    v.    McDowell,   148     111., 

49,  24  L.  R.  A.,  156.  51,  35  N.  E.,  141,  22  L.  R.  A.,  393. 

41  Attorney-General  v.  Cocker-  ■*.■?  Stockton  r.  Central  R.  Co.,  50 
mouth  Local  Board,  L.  R.  18  Eq.,  N.  .1.  Eq.,  52,  24  Atl.,  964,  17  L.  R. 
172;    Attorney-General    r.    Shrews-  A.  97. 


780  INJUNCTIONS.  [chap.  XIII. 

harbor  of  a  city,  for  the  purpose  of  transferring  grain  in  bulk 
from  vessels  to  canal  boats,  does  not  constitute  such  a  public 
nuisance  as  to  warrant  an  injunction  upon  the  application  of 
the  attorney-general  in  behalf  of  the  people.  And  this  is  true, 
even  though  the  use  of  such  elevator  sometimes  causes  tempo- 
rary inconvenience  and  slight  obstruction  to  navigation; 
since  in  such  a  case  the  court  will  balance  the  public  bene- 
fit resulting  from  the  act  complained  of  against  the  private 
and  temporary  inconvenience  resulting  from  such  act.^'* 

§  766.  Obstruction  of  navigable  river  by  dam.  The  ob- 
struction of  a  navigable  river  by  the  erection  of  a  dam 
constitutes  such  a  public  nuisance  or  purpresture  as  to 
justify  the  interposition  of  equity  by  injunction;  and 
when  the  supreme  court  of  the  state  is  empowered  to 
issue  the  writ  of  injunction  as  a  branch  of  its  original 
jurisdiction,  it  may,  in  such  a  case,  entertain  an  informa- 
tion by  the  attorney-general  to  restrain  the  proposed  erec- 
tion.-*^ Where,  however,  the  municipal  authorities  of  a  city 
are  proceeding  to  erect  a  dam  over  a  navigable  river, 
under  an  act  of  legislature  which  expressly  restricts  the 
construction  so  that  it  shall  not  obstruct  navigation,  the 
court  will  not  assume  in  advance  that  it  is  impossible  to 
pursue  the  power  as  granted,  nor  will  it  restrain  the  erection 
upon  the  assumed  ground  that  the  dam  will  obstruct  naviga- 
tion.-*''^ 

§  767.  Effect  of  legislative  sanction.  A  public  nuisance  can 
not  exist  in  acts  which  are  warranted  by  law  or  authorized 
by  legislative  sanction,  even  though  the  act  complained  of 
might,  independent  of  statute,  be  a  nuisance.-*^  Nor  will  a 
charge  in  the  bill  of  special  and  peculiar  injury  to  the  coin- 

44  People  V.   Horton,    64     N.    Y.,  40  State  v.  City  of  Eau  Claire,  40 

610,  affirming  S.  C,  5  Hun,  516.  See  Wis.,  533. 

Hart   v.   Mayor,   9   Wend.,   572,   af-  47  McFarland  v.  Orange  &  N.  H. 

firming  S.  C,  3  Paige,  213.  C.   R.  Co.,  2  Beas.,  17;    Hinchman 

■*■•  Attorney-General    v.    City     of  v.   Paterson    H.     R.     Co.,    2   C.    E. 

Eau  Claire,  37  Wis.,  400.  Green,   75;    Hogencamp    v.    Same, 


CIIAF.  XIII.]  AGAINST  NUISANCE.  731 

plainant  avail,  if  the  work  sought  to  be  restrained  is  au- 
thorized by  legislative  enactment.'*^ 

§  768.  Obstruction  of  water  in  city ;  obstruction  of  square ; 
prize-fights.  The  erection  of  a  foundation  wall  as  a  support 
for  a  building  in  such  manner  as  to  obstruct  the  natural  flow 
of  water  in  a  river  flowing  through  a  city,  thereby  con- 
tributing to  the  overflow  of  the  banks  in  high  water,  is  a 
public  nuisance,  which  will  be  enjoined  at  the  suit  of  the 
city  corporation.'*'-'  And  the  owners  of  adjacent  lots  are  en- 
titled to  an  injunction  against  the  obstruction  of  a  square 
dedicated  to  public  use  ;^*^  or  the  bill  may  be  filed  by  the 
corporate  authorities  of  the  town,  with  whom  may  be  joined 
private  citizens  affected  by  the  nuisance.^^  So  the  erection 
of  a  bay  window  projecting  beyond  the  building  line  and 
into  a  public  street  is  such  an  encroachment  upon  the  pub- 
lic highway  as  to  constitute  a  public  nuisance,  which  may 
be  enjoined  upon  an  information  by  the  attorney-general.^- 
So  the  maintenance  of  an  establishment  for  the  holding  of 
prize  fights  may  be  enjoined  as  a  public  nuisance  in  a  bill 
filed  by  the  public  officials.^^ 

§  769.  Violation  of  private  right  necessary.  Equity  will 
not  restrain  the  continuance  of  a  public  nuisance  in  behalf  of 

lb.,    83;    Attorney-General   v.    New  so  Williams   v.    Smith,     22    Wis., 

York  &  L.  B.  R.  Co.,  9  C.  E.  Green,  594;    LeClercq  v.  Trustees,  7  Ohio, 

49;    Rex  v.  Pease,  4   B.  &  A.,   30;  354;    Trustees  v.   Cowen,   4    Paige, 

Sawyer  v.  Davis,  136  Mass.,  239,  49  510. 

Am.  St.  Rep.,  27;   Murtha  v.  Love-  si  Trustees    v.   Cowen,    4    Paige, 

well,  166  Mass.,  391,  44  N.  E.,  347,  510.    And  see  further,  as  to  joinder 

55    Am.    St.   Rep.,   410.       And    see  of    corporate    authorities    and    pri- 

Bordentown   Road    v.   Camden    R.  vate  citizens  to  enjoin  a  public  nui- 

Co.,  2  Harr.,  314;    Davis  r.  Mayor,  sance.  Mayor  r.  Bolt,  5  Ves.,  129. 

14  N.  Y.,  506;   Attorney-General  v.  S2  Reimer's  Appeal,   100   Pa.    St., 

Conservators,  1  Hem.  &  M.,  1.  But  182. 

see,  contra,  LeClercq  v.  Trustees,  7  ^.i  Columbian     Athletic    Club    v. 

Ohio,  218.  State,  143   Ind.,  98,   40  N.  E.,  914. 

48  Hogencamp  r.  Paterson  H.  R.  28  L.  R.  A.,  728,  52  Am.  St.  Rep., 

Co.,  2  C.  E.  Green,  83.  107. 

■io  Rochester      r.     Erickson,      46 
Barb.,  92. 


732  INJUNCTIONS.  [chap.  XIII. 

a  private  citizen,  merely  because  it  contravenes  the  general 
policy,  in  the  absence  of  any  violation  of  private  right.  An 
injunction  will  therefore  be  withheld  against  the  perpetration 
of  an  act  prohibited  by  public  statute,  the  only  ground  urged 
for  the  relief  being  the  diminution  of  the  profits  of  a  trade 
or  business  pursued  by  complainant  in  common  with  others. ^"^ 
§  770.  Navigable  creek ;  pendency  of  criminal  proceedings. 
The  only  ground  upon  which  the  obstruction  of  a  navi- 
gable creek  or  river  can  be  enjoined  is  the  hindrance  to 
navigation,  and  where  the  stream  is  not  in  fact  navi- 
gated, and  has  not  been  for  many  years,  the  injunction  will 
be  denied.^^  But  the  fact  that  criminal  proceedings  are  pend- 
ing for  the  abatement  of  the  nuisance  will  not  prevent  the 
interference  of  equity.  Thus,  the  proprietor  of  a  mill-dam, 
the  back  water  from  which  constitutes  a  nuisance,  may  be 
enjoined  in  behalf  of  the  people,  pending  an  indictment 
against  him  for  the  same  offense,  where  the  right  of  the 
public  is  clear  and  the  injury  irreparable.'^^ 

§  771.  Adverse  user  no  bar  to  relief.  In  considering  the 
subject  of  injunctions  to  restrain  private  nuisances,  it  is  else- 
where shown  that  twenty  years  adverse  user  and  possession 
under  a  claim  of  right  constitute  an  effectual  bar  to  the 
exercise  of  the  jurisdiction.*''^  The  rule  does  not,  it  would 
seem,  prevail  in  cases  of  public  nuisance,  and  it  is  held  that 
no  period  of  use  or  occupancy,  however  extended  and  unin- 
terrupted, or  under  whatever  claim  of  right,  will  prevent  a 
court  of  equity  from  restraining  the  perpetuation  of  such 
a  nuisance  by  additions  and  repairs.^^ 

§  771  a.  Wasting  of  natural  gas.  The  wasting  of  natural 
gas   upon    which    a    hirgc    iiumlx']'   of   persons    rely    for   heat- 

•"■••t  Smith  V.   Lockwood,  13  Barb.,  to    injunction   against    a   nuisance 

209.  pending     an     indictment    for    the 

''•'■  Gilbert  v.  Morris  C.  &  B.  Co.,  same  offense.  People  v.  St.  Louis,  5 

4  Halst.  Ch.,  495;   State  v.  Carpen-  Gilm.,  351. 

ter,  68  Wis.,  165.  ■<-  See  §  799,  post. 

f'«  Attorney-General    v.   Hunter,  1  ^'^  Rochester     v.     Erickson,       46 

nev.   Eq.,  12.     And  see  further,  as  Barb.,  92. 


CHAP.  XIII.]  AGAINST  NUISANCE.  733 

iag  purposes  and  for  fuel  may  be  enjoined  as  a  public  nui- 
sance in  a  bill  filed  by  the  state.-'^''  So  the  use  of  artificial 
means  which  are  employed,  in  violation  of  the  provisions  of  a 
statute,  to  increase  the  natural  fiow  of  such  gas  and  which 
are  calculated  to  reduce  or  cut  off  the  supply,  may  be  en- 
joined as  a  nuisance  by  an  association  of  manufacturers  who 
rely  upon  the  use  of  the  gas  for  the  operation  of  their 
plants.^^  But  where  the  statute  prohibits  the  maintenance 
of  natural  gas  at  a  pressure  of  more  than  three  hundred 
pounds  to  the  square  inch,  the  statute  being  designed  not 
for  the  preservation  of  the  supply  but  as  an  exercise  of  the 
police  power  to  prevent  the  storage  under  great  pressure  of 
a  highly  inflammable  and  explosive  substance,  and  the  con- 
sequent danger  attendant  thereon,  private  individuals  such 
as  an  association  of  manufacturers  can  not  enjoin  the  main- 
tenance of  gas  at  a  greater  pressure  than  that  allowed 
by  law  where  no  damage  actual  or  threatened  is  apprehended 
and  where  they  show  no  injury  different  in  kind  from  that 
which  will  be  suffered  by  the  public  generally.*'^  And  where 
a  statute  attempts  to  prohibit  the  transportation  and  sale 
of  natural  gas  beyond  the  limits  of  the  state,  such  enactment, 
in  so  far  as  it  applies  to  gas  which  has  been  reduced  to  posses- 
sion, can  not  be  sustained  as  a  valid  exercise  of  the  police 
power,  and  the  sale  of  such  gas  contrary  to  the  provisions  of 
the  act  will  therefore  not  be  enjoined.^'- 

59  state  V.  Ohio  Oil  Co.,  150  Ind.,  Ind.  N.  G.  &  O.  Co.,  155  Ind.,  566,  58 
21,  49  N.  E.,  809,  47  L.  R.  A.,  627.  N.  E.,  851. 

60  Manufacturers  G.  &  O.  Co.  v.  62  Manufacturers  G.  &  O.  Co.  v. 
Ind.  N.  G.  &  O.  Co.,  155  Ind.,  461,  Ind.  N.  G.  &  O.  Co.,  155  Ind.,  545. 
57  N.  E.,  912,  50  L.  R.  A.,  768.  58  N.  E.,  706,  53  L.  R.  A..  134. 

61  Manufacturers  G.  &  0.  Co.  v. 


734  INJUNCTIONS.  [chap.  XIII, 


III.    Nuisances  to  Dwellings. 

§  772.     The  general  rule  stated. 

773.  Peril   to  health   and   comfort,  ground   for   /elief;    illustrations 

of  the  rule. 

774.  Considerations  governing  the  court. 

775.  Cattle  yards;    manufacture  of  gas. 

776.  Powder  house. 

777.  Burning    brick;    forging   iron;    storing    inflammable    material; 

rifle   range;    soot;    smelting  works;    engine  house;    garbage; 
machine  shop;  tobacco  drying  shed. 

778.  Place  of  entertainment;  horse  races;  beer  garden;  circus;  play- 

ing croquet. 

779.  Ringing  of  bells. 

780.  Test  in  crowded  cities;  adjacent  stable;   cooking  range;  privy; 

urinal;   tenement  houses. 

781.  Further  test;   machinery  operated  by  steam;    printing  presses; 

plaintiff  guilty  of  nuisance. 

782.  Houses  of  ill-fame. 

783.  Party-walls;   roofs. 

784.  Offensive  noise  and  odors;  powers  of  board  of  health. 

785.  Annoyance    from   school    house. 

786.  Effect  of  plaintiff's  laches. 

787.  Cautious   interference   with   mills. 

788.  Planing  mill;  increased  risk  of  fire;  manufacturing  inflammable 

material. 

789.  Effect  on  use  or  value  of  surrounding  property;   jail  not  en- 

joined. 

790.  Grounds  of  dissolution. 

791.  Irreparable  injury;   mill  near  railroad  track. 

792.  Changing  character  of  premises;  windows  in  party-wall;   man- 

datory  injunction. 
792o.  Burial  ground,  when  not  enjoined;  proof  of  injury  must  be  clear. 

793.  Joinder  of  parties,  plaintiff  and   defendant. 

§  772.  The  general  rule  stated.  The  most  frequent  in- 
stance of  nuisances  of  a  strictly  private  nature  occurs  in  the 
erection  of  sti-uctures  obnoxious  or  hurtful  to  buildings  used 
for  residence  and  business  i)urposcs.  The  law  ni;iy  be  regarded 
as  settled,  that  when  a  business,  although  lawful  in  itself, 
becomes  obnoxious  to  neighl)oring  dwellings  and  renders  their 


CHA.P.  XIII.]  AGAINST  NUISANCE.  735 

enjoyment  uncomfortable,  whether  by  smoke,  cinders,  noise, 
offensive  odors,  noxious  gases,  or  otherwise,  the  carrying  on 
of  such  business  is  a  nuisance  which  equit}"  will  restrain.^ 
Nor  is  it  necessary  that  the  nuisance  be  injurious  to  health  to 
warrant  the  interference,-  but  mere  noise  will,  in  a  proper 
case,  suffice  to  justify  a  court  of  equity  in  interfering,^  and 
the  relief  has  been  granted  against  the  ringing  of  bells  in 
a  church  in  such  manner  as  to  annoy  a  neighboring  resi- 
dent."* So  maintaining  a  skating  rink  so  near  to  plaintiff's 
residence  as  to  cause  serious  noise  and  disturbance  to 
plaintiff's  in  the  enjo3anent  of  their  property  has  been  en- 
joined.^ And  the  fact  that  the  nuisance  is  not  perpetual, 
but  will  only  recur  occasionally,  and  then  but  for  a  short 
period,  will  not  avail  the  defendant  if  it  be  an  unmistakable 
nuisance.^ 

§773.  Peril  to  health  and  comfort,  ground  for  relief;  il- 
lustrations of  the  rule.  Where  loss  of  health,  destruction  of 
business  and  irreparable  injury  to  property  will  result  from 
the  obnoxious  erections,  equity  will  not  hesitate  to  interfere. 
Thus,  the  burning  of  brick  so  near  a  dwelling  as  to  expose 
the  premises  to  danger  from  fire  and  to  imperil  the  health 
of  the   inmates,^    or   the   erection   of  a   chandlery ,8    or   of   a 

iRoss  r.  Butler,  4  C.  E.  Green,  3  white  v.  Cohen,  1  Drew.,  313; 

294;   Cleveland  r.  Citizens,  5  C.  E.  Snyder  v.  Cabell,  29  West  Va.,  48, 

Green,  201;  Babcock  r.  New  Jersey  1  S.  E.,  241. 

S.  Y.  Co.,  5  C.  E.  Green,  296;  Sny-  -J  Soltau  r.  DeHeld,  2  Sim.  N.  S., 

der  V.  Cabell,  29  West  Va.,  48,  1  S.  133. 

E.,  241;  Price  v.  Oakfield  H.  C.  Co.,  c  Snyder  r.  Cabell,  29  West  Va  . 

87  Wis.,  536,  58  N.  W.,  1039,  24  L.  48,   1    S.   E.,   241. 

R.  A.,  333.     And  see  Attorney-Gen-  e  Ross  r.  Butler,  4  C.   E.  Green, 

eral  v.  Steward,  29  West  Va.,  415;  294. 

Robinson  v.  Baugh,  31  Mich.,  290;  ^  Fuselier     v.     Spalding,     2     La. 

Hutchins  v.  Smith,  63  Barb.,  251;  An.,  773;    Walter   r.   Selfe,  4  Eng. 

Imperial  Co.  v.  Broadbent,  7  H.  L..,  L.  &  E.,  15;   S.  C,  4  DeG.  &  Sm., 

600;  Benner  V.  Junker,  190  t'a.  St.,  315;    White   v.   Jameson,  L.   R.   18 

423,  42  Atl.,  72.  Eq.,    303. 

"  Ross  V.  Butler,  4  C.  E.  Green,  s  Howard  r.  Lee,  3  Sandf.,  281. 
294. 


736 


INJUNCTIONS. 


[CIIAI'.  XIII. 


slaughter  house,'^  or  of  a  livery  stable,^ <^  or  of  a  cemetery,^  ^ 
or  the  operating  of  lime  kilns/ 2  or  of  a  bone  factory  and  ren- 
dering establishment/^  or  of  gas  works/ ^  or  cement  works/ •'^ 
or  of  a  fertilizer  factory/^  or  of  a  carpet  cleaning  estab- 
lishment/^ or  of  a  planing  mill/^  if  so  near  a  residence  as 
to  imperil  the  comfort  or  health  of  its  inmates,  will  be 
enjoined.  And  mere  smoke  or  disagreeable  odors,  although 
not  noxious,  may  be  sufficient  ground  for  the  interference  of 
equity.  So  offensive  noises  may  afford  ground  for  relief,  the 
main  question  in  all  such  cases  being  whether  the  annoyance 
is  such  as  materially  to  interfere  with  the  ordinary  comfort 
of  human  existence.^-*  So,  too,  stenches  and  odors  resulting 
from  a  manufacturing  business,  which  are  of  an  off'ensive 
nature  and  injurious  to  the  public  health,  may  be  enjoined  as 
a  nuisance.-**  And  the  manufacture  of  vitrol  and  sulphuric 
acid  in  a  factor}^  adjoining  plaintiff's  premises  constitutes 
such  a  nuisance  as  entitles  him  to  maintain  a  bill  for  an 
injunction.-^     And  the  keeping  of  jacks  and  stallions  across 


9  Peck  V.  Elder,  3  Sandf.,  126 
Rex  V.  Cross,  2  Car.  &  P.,  484 
Reichert    v.    Geers,     98     Ind.,     73 


199;  City  of  Grand  Rapids  r.  Wie- 
den,  97  Mich.,  82,  56  N.  W.,  233; 
Millhiser  v.  Willard,  96  Iowa,  327, 


Bushnell  v.  Robeson,  62  Iowa,  540,     65  N.  W.,  325. 


17  N.  W., 


As  to  the  form  of         1*  Imperial  Co.    v.    Broadbent,    7 


the   injunction   in    such    case,   see     H.  L.,  600. 


Ballentine  v.  Webb,  84  Mich..  38,  47 
N.  W.,  485,  13  L.  R.  A.,  321. 

1"  Coker  i\  Birge,  9  Ga.,  425; 
Same  v.  Same,  10  Ga.,  336.  But  a 
livery  stable  in  a  city  is  not  a  nui- 
sance per  se,  and  will  not,  there- 
fore, be  enjoined  absolutely,  al- 
though its  use  may  be  enjoined  to 
such  an  extent  as  it  is  a  nuisance 
in  fact.  Shiras  v.  Olinger,  50  Iowa, 
571. 

11  Jung  V.  Neraz,  71  Tex.,  396,  9 
S.   W.,  344. 


15  Umfreville  i\  Johnson,  L.  R. 
10  Ch.  App.,  580. 

16  Evans  v.  Reading  C.  F.  Co.,  160 
Pa.  St.,  209,  28  Atl.,  702. 

J"  Rodenhausen  v.  Craven,  141 
Pa.  St.,  546,  21  Atl.,  774,  23  Am. 
St.  Rep.,  306. 

'■^  Rogers  v.  Week  Lumber  Co, 
117  Wis.,  5. 

I!'  Crump  V.  Lambert,  L.  R.  3  Eq., 
409;   S.  C,  17  L.  T.  N.  S.,  133. 

20  Butterfoss  r.   State,  40    N.    J. 


1^  Hutch  ins    v.   Smith.    63    Barb.,     Eq.,  325;   Williams  i'.   Osborne.   40 
251.  N.  J.   Eq.,  235. 

i«  Meigs  r.  Lister,  8  C.  E.  Green,         21  Chappell  v.  Funk.  57  Md.,  465; 


CHAP.  XJIl.]  AGAINST  NUISAXCE,  737 

the  street  from  and  in  front  of  plaintiff's  residence  may  also 
be  enjoined.--  So  maintaining  a  small  pox  hospital  in  close 
proximity  to  plaintiff's  dwelling  will  warrant  an  interlocutory 
injunction  until  a  final  hearing  of  the  cause.^^  And  when  a 
city  unlawfully  permits  the  use  of  a  street  for  market  pur- 
poses in  front  of  plaintift"s  premises,  causing  offensive  odors, 
loud  noises  and  disturbance  to  plaintiff  and  his  family,  the 
city  may  be  restrained  from  permitting  the  continuance  of 
such  nuisance.-^  And  a  municipal  corporation,  which  is 
proceeding  without  legal  authority  to  construct  a  sewer  upon 
or  near  plaintiff' 's  premises,  which  will  probably  result  in 
great  injury  to  the  health  of  the  plaintiff  and  his  family  by 
discharging  sewage  upon  or  in  the  immediate  vicinity  of  his 
land,  may  be  enjoined  from  so  doing.^s  And  in  such  a  case 
a  railroad  company  may  enjoin  the  municipal  authorities 
from  discharging  sewage  upon  its  right  of  way.-**  So  the 
discharge  of  sewage  from  defendant's  premises  upon  those 
of  plaintift"s,  thereby  seriously  endangering  health,  may  be 
enjoined  as  a  nuisance.-^  So  where  defendant  has  connected 
his  premises  with  a  private  sewer  owned  by  the  plaintiff  and 
is  proceeding  to  make  use  of  it  without  the  latter 's  consent, 
with  the  result  that  the  pipes  are  clogged  and  the  contents 
are  deposited  in  plaintiff' 's  basement,  such  use  by  the  de- 
fendant will  be  enjoined.-^  And  the  unauthorized  use  by  a 
railway  company  of  the  streets  of  a  city  for  maintaining  its 

Georgia   Chemical   Co.   v.   Colquitt,         23  Butler  v.  Mayor,  74  Ga.,  570; 

72  Ga.,  172.  Mayor  v.  Houk,  113  Ga.,  963,  39  S. 

22  Farrell  v.  Cook,  16  Neb.,  483,  E.,  577;    Dierks  v.   Commissioners 
20  N.  W.,  720.  of   Highways,   142    111.,   197,   31   N. 

23  Bendelow  v.  Guardians,  57  L.  E.,  496. 

J.  R.  N.  S.  Ch.,  762.  26  New  York  C.  &  H.   R.   Co.   v. 

24  McDonald  v.  Newark,  42  N.  J.     City  of  Rochester,  127  N.  Y.,  591, 
Eq.,    136,    7    Atl.,  855.       See  as  to     28  N.  E.,  416. 

the    right   to    enjoin   the   mainten-  27  Evans  v.  Wilmington  &  W.  R. 

ance  of  a  blacksmith  shop  on  the  Co.,  96  N.  C,  45,  1  S.  E.,  529. 

ground   of  nuisance,    Whitaker    r.  2s  Boyden  v.  Walkley,  113  Mich., 

Hudson,  65  Ga.,  43.  609,  71  N.  W.,  1099. 

47 


738  INJUNCTIONS.  [chap.  XIII, 

side  tracks,  resulting  in  continuous  injury  to  an  adjacent 
property  owner  by  reason  of  noise  and  smoke,  may  be  en- 
joined as  a  nuisance.2^  And  the  owner  of  a  building  may 
enjoin  as  a  nuisance  the  maintenance  of  a  tower  upon  the 
roof  of  an  adjoining  building  upon  which,  during  cold 
weather,  ice  is  formed  as  the  result  of  the  precipitation  of 
spray  from  a  neighboring  water-fall,  which,  in  thawing,  falls 
off  in  pieces  of  sufficient  size  to  injure  plaintiff's  property 
and  endanger  life  thereon.^*'  So  the  noise  and  pounding- 
resulting  from  the  use  of  a  locomotive  turntable  in  such  a 
way  as  to  cause  injury  to  adjoining  property  and  great 
annoyance  and  discomfort  to  the  inmates  affords  sufficient 
ground  for  an  injunction.^^  And  relief  has  been  allowed 
upon  behalf  of  a  property  owner  restraining  a  city  from 
maintaining  manholes  in  a  highway  in  such  condition  as  to 
allow  the  escape  of  poisonous  gases.^^  While  it  would  seem 
that  an  intentional  and  wanton  disturbance  of  the  peace  and 
comfort  of  plaintiff* 's  home  by  his  neighbors  affords  sufficient 
ground  for  an  injunction,  yet  the  relief  will  be  denied  where 
the  plaintiff  is  as  much  at  fault  in  the  manner  complained  of 
as  is  the  defendant  and  therefore  fails  to  come  into  equity 
with  clean  hands.-^^ 

§  774.  Considerations  governing-  the  court.  To  justify  a 
court  of  equity  in  enjoining  a  nuisance  of  the  class  under 
consideration,  the  person  aggrieved  must  show  to  the  court 
some  actual,  substantial  damage  and  not  merely  a  remote, 
contingent,   or  prospective   injury.^^     ]\Ioreover  the   evidence 

20  Kavanagh   v.    Mobile   &   G.    R.  301,  44  Am.  St.  Rep.,  17. 

Co.,  78  Ga.,  271,  2  S.  E.,  636.  ^a  Medford  v.  Levy    31  West  Va.,. 

30  Davis  V.  Niagara  Falls  Co.,  171  649,  8  S.  B.,  302,  2  L.  R.  A.,  368. 
N.  Y.,  336,  64  N.  E.,  4,  57  L.  R.  A.,  13  Am.  fcjt.  Rep.,  887. 

545,  89  Am.  St.  Rep.  817.  34  Salvin    r.    North     Brancepeth 

31  Garvey  v.  L.  I.  R.  Co.,  159  Coal  Co.,  L.  R.  9  Ch.,  705.  And 
N.  Y.,  323,  54  N.  E.,  57,  70  Am.  St.  see  this  case  as  to  the  weight  to 
Rep.,  550.  be   given   to  scientific  evidence  in 

32  City  of  Atlanta  r.  Warnock,  91  such  cases. 
Ga.,  210,  18  S.  E.,  135,  23  L.  R.  A., 


CHAP.  XIII.]  AGAINST  NUISANCE.  739 

must  be  clear  as  to  the  existence  of  the  nuisance  and  if  it  is 
conflicting  and  leaves  the  question  in  doubt,  the  plaintiff  wii^ 
be  left  to  his  remedy  at  law.^^     Nor  will  equity  enjoin  the 
proposed  erection  as  a  nuisance,  merely  because   it   will   ob- 
struct the  view  of  plaintiff's  place  of  business.-"'*^  Nor  is  the 
reversioner,  or  owner  in  fee  of  premises  occupied  by  a  ten- 
ant, entitled  to  enjoin  the  maintenance  of  a  structure  upon 
adjoining  premises,  when  no  positive  injury  to  the  reversion 
is  shown,  and  when  it  does  not  appear  that  such  (Structure 
is  of  a  permanent  character.'^''     And  upon^  an  application  to 
restrain  a  nuisance  consisting  in  the  noise  created  by  a  manu- 
facturing establishment  upon  adjacent  premises,  the  question 
for  determination  by  the   court   is   largely  a   question   as   to 
degree,  to  be   determined  by  the   circumstances   of  the  par- 
ticular case.^^     So  upon  an  application  to  enjoin  a  nuisance 
resulting    from    defendant's    process     of     manufacturing,    the 
court  will  consider  whether  the  injury  complained  of  is  per- 
manent  and   repeated,   or  merely   accidental   and   occasional. 
And  if  it  appears  that  it  is  of  the  latter  class,  and  that  the 
business  is  conducted  with  due  care  and  precaution,  the  re- 
lief  may   be    withheld,    but   without   prejudice   to    plaintiff's 
right  to  bring  his  action  at  law.^''     But  to  warrant   an  in- 
junction against  odors  and  gases  from  an  off'ensive  business 
it  is  not  necessary  that  the  odors  should  be  noxious,  and  if 
they  are  so  offensive  and  disagreeable  as  to  render  life  un- 
comfortable, equity  may  interfere.-^o     And  the  fact  that  the 
nuisance    recurs    only   when   the    wind   is    in    a    given   direc- 
tion, or  that  it  is  surrounded  by  other  nuisances,  does  not  de- 
prive plaintiffs  of  their  right  to  relief.^^     But  where  the  acts 

35  Nelson  v.  Milligan,  151  111.,  462,  8.     See  also  Dittmann  r.  Repp,  50 
38  N.  E.,  239.  Md.,  516. 

36  Butt  V.  Imperial  Gas  Co.,  L.  R.  so  Cook  v.  Forbes,  L.  R.,  5    Eq., 
2  Ch.,  158.  166. 

37  Cooper  V.  Crabtree,  19  Ch.  D.,  -io  Meigs  r.  Lister,  8  C.  E.  Green, 
193.  199.     See  Duffy  r.  Meadows,  131  N. 

38  Gaunt  V.  Fynney,  L.  R.  8  Ch.,  C,  31,  42  S.  E.,  460. 

■11  Meigs  v.  Lister,  8  C.  E.  Green, 


740  ixjuxcTioxs.  [  CHAr.  xiii. 

complained  of  do  not  constitute  a  nuisance  and  the  plaintifi 
is  acting  strictly  within  his  legal  rights,  relief  will  not  be 
granted  upon  the  ground  that  such  acts  may  greatly  en- 
danger  the    life    of   plaintiff   who    is    in   very   weak    health. ^^ 

§  775.  Cattle  yards ;  manufacture  of  gas.  Illustrations  of 
the  relief  in  cases  of  nuisances  to  dwellings  are  multiform, 
the  principle  common  to  them  all  being  the  injury  to  the 
health,  comfort  or  convenience  of  the  residents.  Thus,  the 
smell  or  stench  arising  from  the  keeping  of  live  hogs  or 
cattle  in  yards  in  such  numbers  and  for  such  length  of  time 
as  to  affect  the  health  or  comfort  of  surrounding  residents, 
is  a  nuisance  which  equity  will  enjoin.^^  And  permitting 
blood  and  other  offal  from  such  animals  to  run  into  the 
waters  of  a  bay  may  also  be  enjoined  as  a  nuisance.'*^  So  the 
manufacture  of  gas  in  such  manner  as  to  produce  serious 
annoyance  to  persons  dwelling  in  adjoining  houses,  whether 
by  smoke,  gases,  effluvia,  or  odors  that  may  issue  from  the 
works,  is  such  a  nuisance  as  to  warrant  the  interposition  of 
a  court  equity  by  injunction.^^  And  the  manufacture  of  gas 
so  near  to  plaintiff's  premises  as  to  injure  his  vegetation 
and  crops  may  be  enjoined  as  a  nuisance.^''  But  the  erec- 
tion of  buildings  to  be  used  for  the  manufacture  of  gas  will 
not  necessarily  be  enjoined,  before  it  is  shown  that  the  works 
will  be  conducted  in  such  manner  as  to  cause  substantial  dis- 
comfort.^^ 

199;    Evans  r.  Reading  C.  F.   Co,  Attorney-General  v.   Steward,  5   C 

160  Pa.   St.,   209,   28  Atl.,  702.  See  E.  Green,  415. 

Duffy  r.   Meadows,   131   N.   C,  31,  45  Cleveland  v.  Citizens  G.  L.  Co., 

42  S.  E.,  460.  5  C.  E.  Green,  201. 

42  Lord  V.  DeWitt,  116  Fed.,  713.  ^g  Broadbent  v.  Imperial  Gas  Co., 

4:i  Babcock   v.   New  Jersey   S.  Y.  7  DeGex,  M.  &  G.,  436. 

Co.,  5  C.  E.  Green,  296;    Baker  r.  47  Cleveland  v.  Citizens  G.  L.  Co., 

Bohannan,  69   Iowa,  60,  28  N.  W.,  5    C.   E.    Green,    201.     This    was  a 

435.     And  see  Trulock  r.  Merte,  72  bill  to  restrain  the  erection  of  gas 

Iowa,  510,  34  N.  W.,  307.  works   in  such   proximity  to   com- 

44  Babcock  r.   New   Jersey  S.   Y.  plainants'   residences  as  to  render 

Co.,  5  C.  E.  Green,  296.     And  see  them    uncomfortable.        The  prin- 


CHAP.  XIII.] 


AGAINST  NUISANCE. 


741 


§  776.  Powder  house.  The  erection  of  a  powder  house,  or 
magazine  for  storing  powder  or  other  explosives,  so  near  to 
plaintiff's  premises  as  to  endanger  their  safety  presents  a 
nuisance  of  such  a  character  as  to  entitle  plaintiff  to  an  in- 
junction.'*^     But  in  cases  of  this  character,  it  is  sometimes  a 


ciples  governing  courts  of  equity 
in  this  class  ol  cases  are  laid 
down  by  Zabrislcie,  Chancellor,  as 
follows:  "Any  business,  however 
lawful,  which  causes  annoyances 
that  materially  interfere  with  the 
ordinary  comfort,  physically,  of  hu- 
man existence,  is  a  nuisance  that 
should  be  restrained;  and  smoke, 
noise  and  bad  odors,  even  when  not 
injurious  to  health,  may  render  a 
dwelling  so  uncomfortable,  as  to 
drive  from  it  any  one  not  compelled 
by  poverty  to  remain.  Unpleasant 
odors,  from  the  very  constitution  of 
our  nature,  render  us  uncomfort- 
able, and  when  continued  or  re- 
peated make  life  uncomfortable. 
To  live  comfortably  is  the  chief 
and  most  reasonable  object  of  men 
in  acquiring  property  as  the  means 
of  attaining  it;  and  any  interfer- 
ence with  our  neighbor  in  the  com- 
fortable enjoyment  of  life  is  a 
wrong  which  the  law  will  redress. 
The  only  question  is  what  amounts 
to  that  discomfort  from  which  the 
law  will  protect.  The  discomforts 
must  be  physical,  not  such  as  de- 
pend upon  taste  or  imagination. 
But  whatever  is  offensive  physi- 
cally to  the  senses,  and  by  such 
offensiveness  makes  life  uncom- 
fortable, is  a  nuisance;  and  it  is 
not  the  less  so,  because  there  may 
be  persons  whose  habits  and  occu- 
pations have  brought  them  to  en- 
dure the  same  annoyances  without 
discomfort.  Other  persons  or  classes 


of  persons  whose  senses  have  not 
been  so  hardened,  and  who  by  their 
education  and  habits  of  life  retain 
the  sensitiveness  of  their  natural 
organization,  are  entitled  to  enjoy 
life  in  comfort  as  they  are  consti- 
tuted. The  law  knows  no  distinc- 
tion of  classes,  and  will  protect  any 
citizen  or  classes  of  citizens,  from 
wrongs  and  grievances  that  might 
perhaps  be  borne  by  others,  with- 
out suffering  or  much  inconven- 
ience. The  complainants  have 
houses  built,  and  held  for  the  pur- 
pose of  residences,  by  families  of 
means  and  respectability,  and  any- 
thing that  by  producing  physical 
discomfort  would  render  them  un- 
fit for  such  residences,  or  drive 
such  families  from  them,  is  a  nui- 
sance, which  the  law  will  restrain. 
This,  then,  is  the  question  before 
me:  whether  the  proposed  works 
of  the  defendants  would  produce 
such  annoyance  as  would  render 
such  families,  composed  of  women 
and  children  as  well  as  men,  un- 
comfortable; not  whether  men  ac- 
customed to  follow  their  occupa- 
tions in  places  where  they  are 
surrounded,  and  unavoidably,  by 
much  that  is  offensive,  may  not  be 
so  accustomed  to  odors  of  like 
nature  as  not  to  be  annoyed  by 
these." 

48Wier's  Appeal,  74  Pa.  St.,  230; 
People's  Gas  Co.  v.  Tyner,  131  Ind., 
277,  31  N.  E.,  59,  16  L.  R.  A.,  443, 
31  Am.  St.  Rep.  433. 


742  INJUNCTIONS.  [chap.  XIII, 

grave  question  whether  so  great  an  injury  would  not  be 
caused  to  the  public  by  enjoining  the  business  that  the 
party  aggrieved  should  be  left  to  pursue  his  remedy  at  law. 
And  in  determining  whether  to  enjoin  the  construction  of  a 
powder  house,  the  court  will  be  governed  by  the  real  char- 
acter of  the  location  and  its  surroundings,  and  by  the  rela- 
tion of  the  industry  in  question  to  the  public  and  to  the 
business  interests  of  the  vicinity.  Where,  therefore,  a  powder 
house  is  indispensable  in  carrying  on  important  branches  of 
industry,  and  it  is  located  about  two  miles  from  the  nearest 
closely  settled  district,  separated  therefrom  by  intervening 
hills  and  ravines,  in  a  sparsely  settled  locality  where  there 
is  no  lik-elihood  of  any  demand  for  land  for  building  pur- 
poses, there  is  no  sufficient  reason  for  sustaining  an  injunc- 
tion  against   the   proposed   erection.-*^ 

§  777.  Burning-  brick ;  f org-ing  iron ;  storing  inflammable 
material;  rifle  range;  soot;  smelting  works;  engine  house; 
garbage;  machine  shop;  tobacco  drying  shed.  It  is  also  held 
that  the  burning  of  brick  by  the  use  of  anthracite  coal,  by 
means  of  which  noxious  gases  are  generated  adjacent  to 
plaintiff's  residence,  resulting  in  the  destruction  of  plaintiff's 
trees  and  shrubbery,  constitutes  such  a  nuisance  as  to  call  for 
relief  by  injunction."^^  And  a  defendant  may  be  enjoined 
from  permitting  soot  to  issue  from  a  smoke  stack  upon  his 
premises  in  a  city,  to  the  annoyance  and  injury  of  plaintiff 
and  his  family .^^  And  the  maintenance  of  works  for  smelt- 
ing lead  so  near  to  plaintiff's  farm  and  residence  that  the 
fumes  and  noxious  vapors  thereby  generated  render  the  land 
unfit  for  cultivation,  destroy  cattle  and  imperil  the  health 
and    comfort    of   plaintiff,    affords    sufficient    ground    for    re- 

4'j  Dilworth  v.  Robinson,  12  Chi-  see   tliis  case  for  a  review  of  the 
cago   Legal   News,   19G;    S.    C.   sub  authorities    relating    to    the    burn- 
now;..  Dilworth's  Appeal,  91  Pa.  St.,  ing  of  brick  as  a  nuisance. 
247.  ■'■''  Sullivan  r.  Royer.  72  Cal.,  248, 

•'■••'  Campbell  r.  Seaman,  63  N.  Y..  13  Pac,  655. 
568,  S.  C,  Thomp.  &  C,  231.     And 


€HAP.  XIII.]  AGAINST  NUISANCE.  743 

lief  by  injunction.'^-  So  a  railway  company  may  be  re- 
strained from  maintaining  an  engine  house  for  locomotives 
so  near  to  plaintiff's  dwelling  as  to  endanger  health  and  to 
render  plaintiff's  premises  untenantable  by  reason  of 
smoke,  cinders  and  soot.  Nor,  in  such  case,  can  the  railway 
company  justify  the  nuisance  upon  the  ground  that  the  en- 
gine house  is  a  necessity  in  the  operation  of  its  road,  no 
express  legislative  authority  being  shown  for  its  mainte- 
nance.^^ And  the  throwing  of  filth  and  garbage  by  an  adja- 
cent property  owner  upon  plaintiff's  premises,  thereby  caus- 
ing constant  annoyance  and  damage,  may  be  enjoined.^"^  So 
the  business  of  forging  iron,  which  is  conducted  by  defend- 
ant upon  an  extended  scale  with  the  use  of  bituminous  coal 
and  employing  large  trip-hammers  in  a  quarter  of  a  city  oc- 
cupied substantially  for  residence  purposes,  may  be  enjoined 
at  the  suit  of  plaintiffs  who  are  the  owners  and  occupants 
of  valuable  residences  in  the  immediate  vicinity.  In  such 
a  case,  the  smoke  and  soot  from  the  business,  with  the  noise 
and  danger  to  comfort  and  health,  afford  strong  ground  for 
equitable  relief.  Nor  does  it  afford  sufficient  objection  to 
the  relief,  under  such  circumstances,  that  plaintiff's  them- 
selves have  in  the  same  vicinity  establishments  which  are 
open  to  the  same  complaint,  or  that  similar  nuisances  .  are 
maintained  in  the  vicinity  by  other  persons. '^^  So  the  storing 
of  inflammable  material,  such  as  damp  jute,  so  near  to  plain- 
tiff's premises  as  to  endanger  them  by  tire  may  be  enjoined 
upon  the  same   ground.^*^     And  the  use   of  a  rifle  range  in 

52  Pennsylvania  Lead    Co.'s    Ap-  M.,  345.     And  in  this  case  the  in- 

peal,  96  Pa.  St.,  116.  junction    was    allowed    in   a     form 

£•3  Cogswell  r.  New  York,  N.  H.  &  which  made  it  practically  manda- 

H.   R.  R.  Co.,  103  N.  Y.,   10,  8  N.  tory,  since  it  restrained  defendants 

E.,  537.  from   allowing   the    damp   jute   al- 

5<  Lowe  /■.  Holbrook,  71  Ga.,  563.  ready  on  their  premises  to  remain 

55  Robinson   r.   Baugh,   31  Mich.,  there,    as    well    as    enjoined    them 

290.  from  bringing  any  more  upon  the 

5«  Hepburn  r.  Lordan,  2  Hem.  &  premises. 


74-4  ixjuxcTioxs.  [chap,  xiii, 

such  manner  as  to  cause  great  danger  to  plaintiff  and  his 
family  by  shooting  across  his  premises  may  be  enjoined.-'^'^ 
And  the  operation  of  a  machine  and  blacksmith  shop  which 
has  been  erected  against  the  protests  of  property  owners  in 
a  neighborhood  given  up  to  fine  and  costly  residences  and 
which  results  in  smoke,  soot,  cinders,  offensive  odors  and 
great  noise,  will  be  enjoined  as  a  nuisance.^^  So  an  injunc- 
tion has  been  granted  against  the  maintenance  of  a  tobacco 
drying  shed  from  which  vile  and  noxious  odors  arose  and 
permeated  plaintiff' 's  building,  causing  great  discomfort  and 
injury  to  health.^^ 

§  778.  Place  of  entertainment ;  horse  races ;  beer  garden ; 
circus;  playing  croquet.  The  collection  of  a  large  and  dis- 
orderly crowd  of  people  in  a  place  where  public  entertain- 
ments are  held,  adjoining  plaintiff' 's  premises,  and  the  noise 
of  fireworks  with  the  danger  of  fire  thereby  caused,  ac- 
companied by  the  playing  of  bands  of  music,  have  been  held 
to  constitute  such  a  nuisance  as  to  entitle  plaintiff'  to  an 
injunction.^^  So  the  carrying  on  of  horse  races  on  Sundays 
which  were  conducted  in  a  disorderly  and  unusual  manner, 
accompanied  by  cheers  of  the  spectators  and  the  shouts  of 
the  bookmakers,  thereby  seriously  disturbing  the  holding  of 
religious  services  in  the  vicinity,  has  been  enjoined  as  a 
nuisance.^^  So  relief  has  been  allowed  against  the  main- 
tenance of  a  disorderly  beer  garden  where  crowds  of  people 
congregated  day  and  niglit,  becoming  intoxicated  and  in- 
dulging in  coarse,  profane  and  vulgar  language,  to  the  great 

07  McKillopp  V.  Taylor,  10  C.  B.  Mich.,  649,  64  N.  W.,  569,  58  Am. 
Green,  139.     As  to  the  right  to  an     St.  Rep.,  511. 

injunction   to    prevent    a  military  "'O  Hundley  r.  Harrison,  123  Ala., 

officer  in   the   public  service  from  292,  26  So.,  294. 

causing  or  permitting  rifle  practice  «"  Walker  v.  Brewster,  L.    R.    5 

upon  a  common  in  close  proximity  Eq.,  25. 

to  plaintiffs  house,  see  Hawley  v.  «i  Dewar    r.    City    &    S.    R.    Co., 

Steele,  6  Ch.  D.,  521.  (1899)  1  L.  R.  Jr.,  345. 

08  McMorran    v.   Fitzgerald,    106 


CHAP.  XIII.]  AGAINST  NUISANCE.  745 

annoyance  of  the  plaintiff  and  his  family.*'^  But  where  the 
nuisance  complained  of  consisted  in  the  establishment  of  a 
circus  in  the  vicinity  of  plaintiff's  premises,  an  injunction 
was  refused  when  sought  upon  the  ground  that  the  circus 
would  draw  together  a  large  number  of  disorderly  people, 
but  granted  upon  the  ground  of  the  noise  thereby  occasioned, 
to  the  inconvenience  of  plaintiff's  family.^^  But  an  injunc- 
tion has  been  refused  against  the  playing  of  croquet  upon  a 
lot  opposite  plaintiff's  house  after  nightfall  and  sometimes 
as  late  as  eleven  o'clock,  by  the  light  of  torches  attached  to 
the  wickets,  where  it  appeared  that  the  game  was  not  con- 
ducted in  a  boisterous  or  disorderly  manner  and  with  no 
more  noise  than  is  usual  in  such  cases  nor  with  the  malicious 
motive  of  annoying  the  plaintiff',  although  it  was  a  great 
source  of  annoyance  and  a  cause  of  extreme  nervousness  to 
the  plaintiff  who  was  far  advanced  in  pregnancy.*'^ 

§  779.  Ringing  of  bells.  Upon  the  like  ground  of  prevent- 
ing a  nuisance  consisting  in  a  disturbing  noise,  the  ringing 
of  bells  has  already  been  mentioned  as  ground  for  injunc- 
tion in  behalf  of  a  neighboring  resident.^'^  And  where  plain- 
tiff's house  was  located  so  near  to  a  church  that  the  ringing 
of  a  bell  at  an  early  hour  in  the  morning  greatly  disturbed 
plaintiff's,  and  they  entered  into  an  agreement  with  the 
church  authorities,  for  a  valuable  consideration,  that  the  bell 
should  not  during  their  lives  be  rung  in  the  morning,  they 
were  protected  by  injunction  from  the  ringing  of  the  bell 
in  violation  of  the  agreement.*^*^  And  an  injunction  has 
been  granted  against  the  loud  and  discordant  blowing  of 
steam  whistles  at  unnecessary  and  unreasonable  hours."^" 

62  Kissel  r.  Lewis,  156  Ind..  233,  es  See  Soltau  v.  DeHeld,  2  Sim. 
59  N.  E.,  478.  N.  S.,  133. 

63  Inchbald  v.  Robinson,  and  ec  Martin  v.  Nutkin,  2  P.  Wms., 
Inchbald  c.  Barrington,  L.  R.  4  Cli.,  266. 

388.  6-  Hill  r.  McBurney  0.  &  F.  Co., 

64  Akers  r.  Marsh,  19  App.  D.  112  Ga.,  788,  38  S.  E.,  42,  52  L.  R. 
C,    28.      See   this    case    as    to   the     A.,  398. 

test  to  be  applied  in  such  cases. 


746  IN  JUNCTIOXS.  [chap.  XIII, 

§780.  Test  in  crowded  cities;  adjacent  stable;  cooking 
range;  privy;  urinal;  tenement  houses.  Upon  the  question 
of  what  constitutes  a  nuisance  to  dwellings  in  populous 
■cities  the  rule  is,  in  general  terms,  as  regards  cases  of  ad- 
Joining-  houses,  that  if  either  party  devotes  his  house  or 
any  portion  of  it  to  unusual  or  extraordinary  purposes  in 
such  manner  as  to  produce  a  substantial  injury  to  his  neigh- 
bor, such  use  of  the  premises  will  not  be  regarded  as  a 
reasonable  use  and  the  person  sustaining  such  substantial 
injury  is  entitled  to  the  aid  of  an  injunction.  Thus,  the 
use  of  a  building  adjoining  plaintiff's,  in  a  large  city,  as 
a  stable  and  the  keeping  of  horses  therein,  causing  annoy- 
ance and  loss  to  plaintiff  in  his  business  as  a  lodging-house 
keeper,  constitutes  such  a  nuisance  as  will  be  eujoined.*^'^ 
So  the  keeping  of  horses  in  a  stable  adjoining  plaintiff's 
premises  and  the  noise  resulting  therefrom,  with  the  fact  of 
moisture  and  dampness  passing  through  from  defendant's 
stable  to  plaintiff's  wall,  afford  sufficient  ground  for  relief 
by  injunction.^^  And  the  use  of  a  range  for  cooking  pur- 
poses in  a  restaurant  underneath  plaintiff' 's  apartment  caus- 
ing an  unreasonable  amount  of  heat  and  smell,  has  been  en- 
joined as  a  nuisance.'^"  So  relief  has  been  granted  against 
the  use  of  a  stove  in  defendant's  kitchen  in  such  a  way  as 
to  render  plaintiff's  wine  cellar  so  hot  as  to  be  untit  for 
the  storage  of  wine.'''^  And  the  erection  and  maintenance 
of,  a  privy  without  plaintiff's  consent,  in  a  yard  owned  in 
common  by  plaintiff  and  defendant,  or  partly  upon  defend- 
v.nt's  i)remises  and  partly  upon  a  private  alley,  may  be  en- 
joined."- And  in  general  the  erection  of  a  privy  so  close  to 
pin inti it's   dwelling   as  to   result   in   great   discomfort   and   in- 

Gs  Ball  V.  Ray,  L.  R.  8  Ch.,  467.  "•  Reinhardt  r.  Mentasti,  42  Ch. 

<■''■<  Broder  v.  Saillard,    2    Ch.    D.,  D.,  685;  S.  C,  58  Law  Journal  Reu. 

■i92.  (N.  S.)   Ch.,  787. 

■"  Sanders-Clark     v.      Grosvenor  t-  Kenopsky  r.  Davis,  27  La.  An., 

Mansions  Co..   (1900)    2  Ch.,  373.  174;  De  Give  y.  Seltzer,  64  Ga.,  423. 


Ci/.AP    XIII. J  AGAINST  NUISANCE.  747 

jury  to  health  will  be  enjoined.""'  Nor  is  it  a  defense  to 
the  maintenance  of  such  a  nuisance  that  the  defendant  in- 
tends to  counteract  its  evil  effects  by  the  use  of  disinfect- 
ants.'''^ And  an  injunction  is  properly  granted  against  tbc 
maintenance  of  sinks  and  urinals  in  the  premises  adjoin- 
.ing  the  plaintiffs,  which  are  so  imperfectly  connected  with 
the  sewers  that  the  filth  and  refuse  penetrates  plaintiff's 
cellar  wall,  forming  noxious  and  oft'ensive  pools  upon  his 
premises  which  render  them  unfit  for  habitation.'^''  So  the 
municipal  authorities  will  be  enjoined  from  draining  the 
waterclosets  and  urinals  of  a  public  building,  such  as  a  court 
liouse  in  process  of  construction,  in  such  a  way  that  the  re- 
fuse will  be  deposited  upon  plaintift"s  land.''''^  But  an  in- 
junction has  been  refused  against  the  erection  of  a  urinal  by 
a  municipal  corporation,  when  it  did  not  appear  that  defend- 
ants were  transcending  their  powers,  and  when  it  was  not 
shown  that  the  proposed  erection  would  constitute  a  nui- 
sance.'^'^  Nor  will  the  owner  of  real  estate  in  a  city  be  en- 
joined, at  the  suit  of  an  adjacent  property  owner,  from  erect- 
ing tenement  houses  upon  his  premises,  upon  the  ground  that 
they  are  to  be  occupied  by  colored  families  for  the  purpose 
of  annoying  plaintiff'."*^ 

§781.  Further  test;  machinery  operated  by  steam;  print- 
ing- presses;  plaintiff  guilty  of  nuisance.  In  determining 
whether  a  proper  case  is  jDresented  for  relief  by  injunction 
against  nuisances  to  buildings  in  cities,  a  satisfactory  test  is, 
whether  the  matter  complained  of  produces  such  a  condition 
of  things  as  in  the  judgment  of  reasonable  men  is  produc- 
tive of  actual  physical  discomfort  to  persons  of  ordinary  sen- 
sibilities and  of  ordinary  tastes  and  habits,  and  such  as,  in 

73  Wahle  r.  Reinbach,  76  111.,  322;  '•' Pierce   r.   Gibson    County,    107 

Radican  v.  Buckley,  138  Ind.,  582,  Tenn.,  224,  64  S.  W.  33,  55  L.  R.  A., 

38  N.  E.,  53.  477,  89  Am.  St.  Rep.,  946. 

~i  Radican  r.   Buckley,  138   Ind.,  ' '  Biddulph     v.     Vestry     of     St. 

582,  38  N.  E.,  53.  George,  3  DeG.,  J.  &  S.,  493. 

T5  Fleischner  r.  Citizens  I.  Co.,  25  's  Palloon  r.  Schilling,  29    Kan., 

Ore.,  119,  35  Pac.,-174.  292. 


748  INJUNCTIONS.  [chap.  XIII. 

view  of  the  circumstances  of  the  case,  is  unreasonable  and 
in  derogation  of  plaintiff's  rights.  Applying  this  test,  the 
noise  caused  by  the  operation  of  machinery  by  steam  upon 
premises  adjoining  plaintiff' 's  dwelling,  together  with  the 
vibratory  and  jarring  eft'ect  produced  by  such  machinery 
upon  plaintiff's  house,  rendering  the  walls  unsafe,  will  war- 
rant relief  by  injunction.'^'-'  If,  however,  the  injury  to  plain- 
tiff's building  from  operating  machinery  by  steam  power  upon 
adjacent  premises  aft'ects  only  the  rental  value  of  plaintiff' 's 
property  and  can  be  adequately  compensated  in  damages, 
equity  will  decline  to  interfere  by  injunction ;  especially  when 
the  business  complained  of  is  not  a  nuisance  jwr  se,  and  when 
plaintiff'  has  acquiesced  therein  for  many  years. ^'^  And  when 
the  alleged  nuisance  consists  in  the  operation  of  steam  print- 
ing presses  in  a  city,  but  the  proof  is  conflicting  as  to  the 
effect  of  such  operation,  it  is  not  error  to  refuse  an  inter- 
locutory injunction  which  would  greatly  damage  defendant 
by  preventing  him  from  continuing  his  business.*^  And 
where  it  appears  that  plaintiff,  who  is  seeking  to  enjoin  the 
operation  of  heavy  steam  machinery,  is  himself  conducting  a 
business  which  is  at  times  harmful  to  the  neighborhood  and 
which  frequently  results  in  the  pollution  of  the  atmosphere, 
while  this  circumstance  is  not  sufficient  to  justify  a  nui- 
sance, it  may  nevertheless  deter  the  court  where  plaintiff's 
right  is  doubtful.'-- 

§  782.    Houses  of  ill-fame.     The  general  principles  of  equity 
with  regard  to  nuisances  and  their  restraint  apply  to  houses 

79  Dittman  v.  Repp,  50  Md.,  516;  that     an     injunction     should     be 

Shelfer   v.    City   of  London   E.   L.  granted. 

Co.,  64  L.  J.  N.  S.  Ch.,  216;   Dem-  so  Goodall  r.  Crofton,  33  Ohio  St., 

arest   v.    Hardham,    34    N.    J.    Eq.,  271. 

469.      In  the  latter  case  it  was  or-  **i  McCaffrey's      Appeal,   105  Pa. 

dered  that  the  defendant  should  so  St.,  253. 

change    the     position    of    his    ma-  ^'^  Straus  v.  Barnett,  140  Pa.  St., 

chinery    as   to    prevent   the   vibra-  111,  21  Atl.,  253. 
lion,     or,     in  default  of  so  doing. 


CHAP.  XIII.  J  AGAIXST  NUISANCE.  749 

of  ill-fame,  and  the  continuance  of  such  houses  may  be  re- 
strained upon  a  bill  filed  by  private  persons,  alleging  that 
the  close  proximity  of  such  nuisance  to  their  private  resi- 
dence deprives  them  of  the  comfortable  enjoyment  of  their 
property  and  greatly  diminishes  its  value.^^  Nor  does  it  con- 
stitute a  defense  to  the  granting  of  the  relief  in  such  case 
that  the  acts  complained  of  are  crimes  and  as  such  may  be 
punished  under  the  criminal  laws  of  the  state.^^  Nor  is  it  a 
Aefense  that  the  plaintiff  does  not  himself  reside  upon  the 
premises  but  rents  them  out  to  tenants.*^^  So  the  owner  of 
dwelling  houses,  who,  with  full  knowledge  of  such  use,  rents 
them  to  be  used  as  houses  of  prostitution,  may  be  enjoined 
from  renting  them  for  such  purposes.^''  But  to  entitle  the 
plaintiff'  to  relief,  he  must  make  distinct  and  positive  aver- 
ments and  allegations  sufficient  to  show  that  the  acts  com- 
plained of  in  fact  amount  to  a  nuisance.^^ 

§783.  Party-walls;  roofs.  In  the  case  of  adjacent  lot  own- 
ers between  whom  there  is  a  party-will,  equity  may  enjoin 
one  of  such  owners  from  maintaining  his  roof  in  such  man- 
ner and  of  such  construction  that  water,  snow  and  ice  there- 
from fall  upon  the  roof  of  the  adjacent  owner,  to  its  great 
damage  and  causing  serious  danger.^^  But  in  conformity 
with  the  maxim  that  he  who  would  have  equity  must  do 
equity,   it   is  held  that  where   one   seeks   to   restrain   an  ad- 

83  Hamilton  v.  Whitridge,  11  Md.,  tenance  of  the  house  would  depre- 
128;  Cranford  r.  Tyrrell,  128  N.  Y.,  elate  the  value  of  property  in  the 
341,  28  N.  E.  514;  Weakley  v.  vicinity  and  that  it  was  obnoxious 
Page,  102  Tenn.,  178,  53  S.  W.,  551,  tc  the  neighborhood,  the  relief  was 
46  L.  R.  A.,  552;  Blagen  v.  Smith,  denied  on  the  ground  that  the 
34  Ore.,  394,  56  Pac,  292,  44  L.  R.  nuisance  was  a  crime. 

A.,  522.  85  Weakley   v.   Page,   102    Tenn., 

84  Cranford  r.  Tyrrell,  128  N.  Y.,  178,  53  S.  W.,  551,  46  L.  R.  A.,  552. 
341,  28  N.  E.,  514.  And  see,  ante,  se  Marsan  v.  French,  61  Tex.,  173. 
§  20a.  But  see,  contra,  Neaf  v.  87  Redway  v.  Moore,  3  Idaho,  312, 
Palmer,  103  Ky.,  496,  45  S.  W.,  506,  29  Pac,  104. 

41  L.  R.  A.,  219,  where,  although  ss  Brooks  v.  Curtis,  4  Lans.,  283. 
it  appeared  clearly  that  the  main- 


750  ixjuxcTioxs.  [chap.  xiii. 

jaceiit  lot  owner  from  using  his  Avail  as  a  party-wall,  but 
plaintiff's  wall  projects  over  upon  elefenclant's  lot,  plain- 
tiff can  have  relief  only  upon  condition  of  removing  so  much 
of  his  wall  as  projects  upon  defendant's  preraises.^'^ 

§  784.  Offensive  noise  and  odors ;  powers  of  board  of 
health.  The  handling  of  old  iron  so  near  to  plaintiff"s  dwell- 
ing as  to  cause  great  noise  injurious  to  the  health  and  com- 
fort of  plaintiff's  family,  and  the  drying  of  old  rags  and 
sheepskins  upon  the  roof  of  defendant's  premises  in  the 
vicinity  of  plaintiff's,  thereby  emitting  unwholesome  and  un- 
healthful  odors,  would  seem  to  be  sufficient  ground  for  an 
injunction.  And  where  in  an  action,  under  the  procedure 
of  the  state,  to  recover  damages  for  such  a  nuisance  as  well 
as  for  an  injunction,  the  court  directs  all  the  issues  to  be 
tried  by  a  jury  and  the  jury  find  a  verdict  for  plaintiff,  with 
damages,  it  is  held  that  the  verdict  necessarily  finds  that 
defendants  have  committed  the  acts  charged  as  a  nuisance, 
and  therefore  entitles  plaintiff'  to  an  injunction.*^^  And  a 
municipal  board  of  health,  which  is  authorized  to  prohibit 
che  exercise  of  any  offensive  trade  or  employment  within 
a  city,  having  declared  a  particular  trade  to  be  a  nuisance 
and.  prohibited  its  exercise,  may  maintain  an  action  to  re- 
strain the   prosecution  of  such   trade.''^ 

§  785.  Annoyance  from  school  house.  It  is,  however,  im- 
portant to  bear  in  mind  that  the  mere  fact  of  a  depreciation 
in  the  value  of  plaintiff" 's  property,  by  the  act  which  he 
seeks  to  restrain  as  a  nuisance,  will  not  warrant  a  court  of 
equity  in  granting  an  injunction  unless  the  act  complained  of 
is  a  nuisance  in  law.  Where,  therefore,  it  is  sought  to  en- 
join the  erection  of  a  school  house  upon  premises  adjoining 
those  of  plaintiff',  the  relief  will  not  be  allowed  merely  upon 
the    ground   that   such   erection   will    depreciate   the   value   of 

80  Guttenberger  r.  Woods,  51  Cal.,  reversing  S.  C,  1  Thomp.  &  C,  590. 
523.  '-'^  City  of  Taunton  r.  Taylor,  116- 

00  Parker  r.  Laney,  58  N.  Y.,  469,     Mass.,  254. 


CHAP.  XIII.]  AGAINST  NUISANCE.  -  751 

plaintiff's  property  and   cause  him  some   annoyance  and  in- 
convenience.^2 

§  786.  Effect  of  plaintiff's  laches.  He  who  seeks  relief 
against  a  nuisance  must  show  due  diligence  in  the  assertion 
of  his  rights,  and  where  complainant  has  been  guilty  of  great 
laches,  or  has  allowed  defendant  for  a  long  period  to  continue 
in  the  erection  of  his  obnoxious  structure  at  great  expense 
and  without  molestation,  equity  will  not  interfere.*^^  Even 
where  the  cause  of  complaint  has  been  temporarily  removed 
and  is  about  to  be  renewed,  complainants,  who  have  long 
slept  on  their  rights,  will  not  be  allowed  to  enjoin  it  as  a 
renewal  of  the  nuisance,  and  thus  put  themselves  in  the  posi- 
tion from  which  their  own  laches  has  debarred  them.'^^  Es- 
pecially will  plaintiff's  laches  be  a  bar  to  relief  where  the 
granting  of  the  injunction  would  result  in  great  injury  and 
inconvenience  to  the  public  with  little  corresponding  benefit 
to  the  plaintiff.^^  It  is  difficult  to  fix  any  precise  period  of 
delay  as  fatal  to  complainant's  right  to  relief  against  the 
nuisance,  but  where  defendant  has  for  more  than  twenty 
years  carried  on  his  trade  without  molestation,  and  proves 
a  good  prima  facie  title  by  prescription,  equity  will  not  in- 
terfere, but  will  leave  the  parties  to  seek  their  remedy  at- 
law.^^     And  it  has  frequently  been  decided  that  where  the 

.92  Harrison  y.  Good,  L.  R.  11  Eq.,  Co.,  Saxt.,     518.       Defendants     at 

338.  great  expense  had  erected  a  dam 

93  Parker  v.  Winnipiseogee  L.  C.  and  works,  which    had    continued. 

&  W.  Co.,  2  Black,  545;    Tichenor  for  several  years  without  molesta- 

V.  Wilson,  4  Halst.  Ch.,  197;   Dana  tion  from  complainant.  The  water 

V.  Valentine,  5   Met.,   8;    Weller  v.  having  been  temporarily  drawn  off 

Smeaton,  1  Cox,  102;    Reid  v.  Gif-  and  defendants  being  about  to  raise 

ford,  6  Johns.  Ch.,  19;  Southard  v.  it  to   its  former  height,  complain- 

Morris  C.  &  B.  K.  Co.,  Saxt,  518;  ant  sought  an  injunction  to  prevent 

Johnson  v.  Wyatt,  2   DeGex,   J.  &  them  from  so  doing.       The  relief 

S.,  17.       See  also  Louisville  Coffin  was  refused   upon    the    principles 

Co.  V.  Warren,  78  Ky.,  400;  Herr  r.  stated  in  the  text. 

Central  Ky.  Asylum,  110  Ky.,  282,  os  Herr  r.  Central    Ky.    Asylum.. 

61  S.  W.,  283;  Tuttle  v.  Church,  53  110  Ky.,  282,  61  S.  W.,  283. 

Fed.,  422.  oo  Dana  v.  Valentine,  5  Met.,  8. 

^4  Southard  v.  Morris  C.  &  B.  K. 


752 


iNJUNCmONS. 


[chap.  xiii. 


works  complained  of  had  been  allowed  to  stand  three  years 
and  upward,  it  was  such  laches  as  would  prevent  relief  in 
equity .^^  But  it  is  held  that  no  acquiescence  short  of  twenty 
years  adverse  user  will  bar  plaintiff  from  his  right  to  relief 
by  injunction  against  a  nuisance,  unless  he  is  estopped  by 
some  act  or  conduct  which  has  induced  defendant  to  incur 
expense,  or  to  take  action  upon  the  strength  of  such  con- 
duct.98 

§787.  Cautious  interference  with  mills.  Great  caution  is 
exercised  in  interfering  with  establishments  and  erections 
which  tend  to  promote  public  convenience,  as  in  the  case 
of  mills,  and  in  such  cases  it  will  not  suffice  to  show  a  prob- 
able or  contingent  injury,  but  it  must  be  shown  to  be  inevit- 
able and  undoubted.^  And  where  a  statute  provides  ample 
remedy  at  law  for  the  damages  incurred,  the  injunction  will 
not  be  allowed.^  And  a  flouring  and  corn  mill  in  a  city  is 
not  a  nuisance  per  se,  which  will  be  enjoined  as  such  by 
a  court  of  equity.  Indeed,  it  may  be  affirmed  as  a  general 
rule  applicable  to  cases  of  this  nature,  that  equity  will  not 
enjoin  the  lawful  use  of  such  property  in  a  city,  when  by 
the  proper  application  of  scientific  appliances  and  machinery 
the  evils  complained  of  may  be  remedied;  and  in  such  case, 
the  court  will  go  no  further  than  to  require  such  appliances 
to  be  used.3  Nor  will  a  court  of  equity,  at  the  suit  of  an 
adjacent  proprietor  occupying  the  upper  portion  of  his  build- 
ing as  a  residence,  enjoin  the  operation  by  defendants  of  a 
steam  flouring  mill  in  a  business  locality  in  a  city,  when  the 
mill  is  carefully  constructed  to  avoid  injury  to  others  and 
is  operated  in  a  proper  manner,  even  though  considerable  in- 


87  Weller  v.  Smeaton,  1  Cox,  102; 
Reid  V.  Gifford,  6  Johns.  Ch.,  19; 
Tichenor  v.  Wilson,  4  Halst.  Ch., 
197. 

98  Campbell  v.  Seaman,  63  N.  Y., 
568;  S.  C,  2  Thomp.  &  C,  231. 

i  Barnes  v.  Calhoun,  2  Ired.  Eq., 


199;  Attorney-General  v.  Perkins, 
2  Dev.  Eq.,  38.  See  also  Owen  v. 
Phillips,  73  Ind.,  284. 

-  Barnes  v.  Calhoun,  2  Ired.  Eq., 
199. 

3  Green  i;.  Lake,  54  Miss.,  540. 


•CHAP.  XIII.]  AGAINST  XUISAXCE.  753 

convenience  and  annoyance  should  result  to  plaintiff  by  its 
operation.  In  such  a  case,  the  court  will  have  due  regard 
to  the  general  interests  of  the  public,  and  such  minor  in- 
conveniences as  result  to  the  citizen  will  be  left  to  be  re- 
dressed by  an  action  for  damages  rather  than  by  the  more 
.severe  remedy  of  injunction.^  Upon  the  same  principles,  an 
injunction  will  not  be  granted  against  the  operation  of  an 
electric  lighting  plant  which  furnishes  light  to  the  inhabitants 
of  a  city,  because  of  noise,  smoke  and  vibration,  where  de- 
fendant has  made  alterations  in  the  plant  to  diminish  the 
evils  complained  of  which  leave  it  a  matter  of  doubt  whether 
plaintiff  is  suffering  any  substantial  injury  or  discomfort 
greater  than  that  which  is  usually  incident  to  city  life,  espe- 
cially where  the  granting  of  the  writ  would  result  in  great 
inconvenience  to  the  public  by  depriving  them  of  lights.^ 
§  788.  Planing  mill ;  increased  risk  of  fire ;  manufacturing 
inflammable  material.  When  the  business  proposed  is  law- 
ful in  itself,  as  in  the  erection  of  a  planing  mill,  and  the 
testimony  is  conflicting  as  to  whether  its  operation  will 
prove  a  nuisance,  equity  will  not  interfere,  the  question  of 
nuisance  being  doubtful.*^  And  the  fact  that  a  planing  mill 
would  injure  plaintiff's  business,  or  injure  the  reputation  of 
his  house  as  a  boarding-house  and  make  it  less  desirable  for 
that  purpose,  thereby  lessening  his  profits,  will  not  warrant 
an  injunction  when  it  is  not  shown  that  the  operation  of 
such  mill  would  be  a  nuisance.'''  But  a  bill  alleging  that  a 
planing  mill  is  to  be  located  in  a  residence  portion  of  a 
city  in  close  proximity  to  plaintiff's  dwelling  and  that  its 
operation  will  cause  a  great  amount  of  steam,  dust,  dirt, 
smoke  and  noise,  which  will  penetrate  into  plaintiff's  house, 
making  it  necessary  to  keep  the  windows  closed  and  render- 

4  Gilbert  v.  Showerman,  23  Mich.,  e  Duncan  v.  Hayes,  7  C.  E.  Green, 
448.    See  Owen  v.  Phillips,  73  Ind.,  25;  Dorsey  v.  Allen,  85  N.  C,  358. 
284.  7  Duncan  v.  Hayes,  7  C.  E.  Green, 

5  English  V.  Progress  E.  L.  &  M.  25. 
Co.,  95  Ala.,  259,  10  So.,  134. 

48 


754  INJUNCTIONS.  [chap.  XIII. 

ing  it  unfit  for  habitation,  has  been  held  good  on  demurrer.- 
But  the  increased  risk  of  fire  resulting  from  defendant's 
structure  and  the  consequent  larger  rates  of  insurance  will 
not  of  themselves  warrant  relief  by  injunction.'^  So  when 
the  bill  sought  to  restrain  the  erection  of  a  manufactory  for 
the  making  of  felt  roofing,  upon  the  ground  that  the  dirt, 
smoke  and  appurtenances  of  the  factory,  with  the  inflammable 
nature  of  the  materials  used  in  the  process  of  manufacturing- 
such  roofing,  would  impair  health  and  destroy  the  character 
of  plaintiff's  property  for  dwelling  purposes,  and  that  ir- 
reparable and  continuing  injury  would  result  to  plaintiffs 
from  the  carrj'ing  on  of  such  business,  it  was  held  that  the 
facts  constituting  the  alleged  injury  were  not  sufficiently 
stated  to  justify  an  injunction  in  the  first  instance.^^ 

§789.  Effect  on  use  or  value  of  surrounding  property, 
jail  not  enjoined.  It  is  no  ground  for  interference  that  the 
erection  of  the  alleged  nuisance  would  prevent  the  use  of 
surrounding  property  for  such  buildings  as,  in  the  ordinary 
course  of  affairs  and  the  extension  of  a  city,  would  be 
erected.ii  go  equity  wnll  not  interfere  in  behalf  of  the  own- 
ers of  vacant  lots,  to  enjoin  the  carrying  on  of  a  soap  fac- 
tory, on  the  ground  that  it  prevents  the  lots  from  being  built 
upon  and  dimishes  their  value,  since  the  proper  remedy  is  by 
an  action  at  law  to  recover  damages  for  the  diminished 
value  of  the  property .1-  And  the  erection  of  a  jail  being  a 
matter  of  public  necessity  and  not  a  nuisance  per  se,  it  will 
not  be  enjoined  upon  the  ground  that  it  might  cause  annoy- 
ance or  inconvenience  to  a  property  owner  residing  in  its 
immediate  vicinity.^-' 

«  Rogers  v.  Week  Lumber  Co.,  117  10  Adams  v.  Michael,  38  Md.,  123. 

Wis.,  5,  93  N.  W.,  821.  "  Rtiodes  v.  Dunbar,  57  Pa.  St., 

!»  Duncan  v.  Hayes,  7  C.  E.  Green,  274. 

25;   Rliodes  v.  Dunbar,  57  Pa.  St.,  i-' Dana  v.  Valentine,  5  Met,  8. 

274;  Chambers  v.  Cramer,  49  West  i-' Burwell  v.   Commissioners,  93 

Va.,  395,  38  S.  E.,  691,  54  L.  R.  A.,  N.  C,  73. 
545. 


CHAP.  XIII.]  AGAINST  NUISANCE.  755 

§790.  Grounds  of  dissolution.  The  fact  that  the  answer, 
while  admitting  the  material  facts  charged  in  the  bill,  denies 
the  conclusion  that  the  erection  would  be  a  nuisance,  will 
not  warrant  a  dissolution  of  the  injunction.^'*  But  if  upon 
the  bill  and  answer  it  does  not  appear  that  the  structure 
complained  of  is  'prima  facie  a  nuisance,  the  injunction  will 
be  dissolved,  the  defendant,  however,  proceeding  at  his  peril 
in  the  erection.^  ^  Nor  will  an  injunction  be  continued 
against  the  erection  of  a  structure  where  the  facts  do  not 
satisfactorily  show  a  probability  of  irreparable  injury  to 
complainants,  or  that  it  would  endanger  their  lives  or  health, 
or  prove  materially  injurious  to  their  comfort.^'^ 

§791.  Irreparable  injury;  mill  near  railroad  track.  Relief 
bj'  injunction  is  sometimes  granted  where  damages  for  the 
commission  of  the  nuisance  would  be  difficult  of  adjustment 
pecuniarily,  thus  rendering  the  remedy  at  law  ineffectual. 
Upon  this  ground  the  erection  of  a  mill  so  near  a  railway 
track  as  not  to  leave  room  for  repairing  the  track  has  been 
enjoined  as  a  nuisance.^'''  And  it  is  held  that  a  bill  to  en- 
join the  erection  of  a  nuisance  in  close  proximity  to  com- 
plainant's buildings,  which  contains  allegations  of  irreparable 
injury  to  complainant,  is  not  demurrable  for  want  of  equity, 
nor  as  stating  a  case  in  which  the  sole  remedy  is  at  law, , 
nor  because  it  fails  to  show  that  the  rights  of  the  parties 
have  been  settled  at  law.^^ 

§  792.  Changing-  character  of  premises ;  windows  in  party- 
wall;  mandatory  injunction.     Lessees  of  a  building  who  have 

14  Coker  v.  Birge,  9  Ga.,  425.  And   in    Porter     v.    Witham,     17 

15  Mygatt  V.  Goetchins,  20  Ga.,  Maine,  292,  it  is  held  that,  unless 
350;  Cunningham  v.  Rice,  28  Ga.,  complainant's  right  has  been  es- 
30.  tablished  at  law,  he  must  show  a 

16  Thebaut  v.  Canova,  11  Fla.,  long  and  uninterrupted  user  to 
143.  warrant  the  interposition  of  equity. 

1'  Cunningham  v.  Rome  R.  Co.,  But  the  weight  of  authority  would 
27  Ga.,  499.  seem  to  be  against  this  position. 

18  Aldrich  v.  Howard,  7  R.  I.,  87. 


756  INJUNCTIONS.  [chap.  XIII. 

rented  upon  representations  to  the  lessor  that  they  desired 
the  building"  for  a  private  dwelling  may  be  enjoined  from 
altering  it  in  such  manner  as  to  carry  on  the  business  of 
coach  making,  the  house  being  in  danger  of  falling  froiu  the 
alterations.^*^  And  the  converting  of  old  houses  in  a  large 
city  to  purposes  -which  render  them  dangerous  to  the  public 
may  be  enjoined  as  a  nuisance.-*^  So  where  party-walls  are 
required  by  law  to  be  of  solid  brick  or  stone,  without  open- 
ings, the  erection  by  a  lot  owner  of  a  party-wall  containing 
windows  constitutes  such  a  nuisance  as  comes  within  the  re- 
straining powers  of  equity,  and  it  will  be  enjoined.-^  And  in 
a  case  of  nuisance  to  a  dwelling  house,  the  injunction  will  be 
made  mandatory  if  the  circumstances  of  the  case  require  it.-^ 

§792 a.  Burial  gfround,  when  not  enjoined;  proof  of  injury 
must  be  clear.  A  burial  ground  is  not  such  a  nuisance  per 
se  as  to  entitle  land  owners  in  its  vicinity  to  enjoin  its  con- 
tinuance. And  unless  such  special  circumstances  are  shown 
as  to  satisfy  the  court  that  the  continued  use  of  the  prem- 
ises for  burial  will  result  in  special  injury  to  plaintiff,  ir- 
reparable by  the  ordinary  remedies  at  law,  equity  will  not 
interfere.-^  And  to  warrant  an  injunction  against  the  con- 
tinuance of  a  burial  ground  general  averments  of  injury  will 
not  suffice,  but  facts  and  circumstances  must  be  distinctly 
averred  from  which  the  court  may  plainly  see  that,  unless 
the  relief  is  granted,  there  will  be  a  diminution  of  plaintiff's 
enjoyment  of  his  premises  and  probable  injury  to  the  health 

19  Bonnett  v.  Sadler,  14  Ves.,  526.  from  further  using  the    buildings 

-'0  Mayor  v.  Bolt,  5  Ves.,  129.     In  as  storehouses. 

this  case  certain  old  houses  in  Lon-  -^  Vollmer's  Appeal,   61  Pa.    St., 

don  were  about  to  be  pulled  down  118. 

in  making    improvements    in    the  -':;  Hervey  v.  Smith,  1  Kay  &  J., 

city,  and  defendant  had  stored  in  392.    See  also  Gale  r.  Abbott,  8  Jur. 

them  large  quantities  of  sugar,  so  N.  S.,  987. 

that  two  of  the  houses  had  actual-  23  Kingsbury.  ?;.  Flowers,  65  Ala., 

ly  fallen  and  others  were  in  great  479;    Dunn   v.   City   of  Austin,    77 

danger.      Defendant    was    enjoined  Tex.,  139,  11  S.  W.,  1125. 


CHAP.  XIII.]  AGAINST  NUISANCE.  757 

of  his  family.-^  And  to  warrant  relief  in  such  cases,  proof 
of  the  injury  complained  of  must  be  clear,  especially  where 
the  granting  of  the  injunction  would  work  great  public  in- 
convenience. Where,  therefore,  there  is  no  proof  of  any  sub- 
stantial injury  to  the  plaintiff  and  it  appears  doubtful 
whether  any  will  ever  occur,  the  injunction  should  be  de- 
nied.25  But  where  it  clearly  appears  that  the  maintenance 
of  a  burial  ground  in  the  vicinity  of  the  plaintiff's  dwell- 
ing will  result  in  injury  to  life  and  health  either  by  cor- 
rupting the  surrounding  atmosphere  or  the  water  of  wells 
and  springs,  relief  by  injunction  may  be  granted  owing  to 
the  inadequacy  of  the  legal  remedy.-'^  And  where  a  statute 
grants  municipal  authorities  power  to  acquire  land  for  ceme- 
tery purposes  but  provides  that  land  shall  not  be  appro- 
priated for  that  purpose  .  within  two  hundred  yards  of  any 
dwelling,  the  establishment  of  a  burial  ground  at  a  less 
distance   than  that   prescribed   may   be    enjoined.^" 

§  793.  Joinder  of  parties,  plaintiff  and  defendant.  Upon 
the  question  of  the  joinder  of  plaintiff's  in  an  action  to  re- 
strain a  nuisance  to  dwellings,  the  authorities  are  not  uni- 
form. In  this  country  it  has  been  held  that  separate  own- 
ers of  distinct  property  interests  which  are  injuriously  af- 
fected by  the  same  nuisance  may  join  in  maintaining  a  bill 
for  an  injunction.^^  Under  the  English  chancery  practice, 
however,  a  dift'erent  rule  seems  to  have  prevailed.  And  when 
different  persons  joined  in  the  action,  each  having  a  separate 
tenement,  the  bill  praying  an  injunction  against  the  erection  of 

24  Kingsbury  v.  Flowers,  65  Ala.,  Lowe  v.  Prospect  H.  C.  Assn.,  58 
479;  Dunn  v.  City  of  Austin,  77  Neb.,  94,  78  N.  W.,  488,  46  L.  R. 
Tex.,  139,  11  S.  W.,  1125.     See  also     A.,  237. 

Upjohn   V.    Board     of     Health,     46  27  Henry  v.  Trustees,  48  Ohio  St., 

Mich.,  542,  9  N.  W.,  845.  671,  30  N.  E.,  1122. 

25  AVahl  V.  M.  E.  Cemetery  Assn.,  2s  Robinson  v.  Baugh,  31  Mich., 
197  Pa.  St.,  197,  46  Atl.,  913.  290;  Bushnell  v.  Robeson,  62  Iowa, 

26  Clark  v.  Lawrence,  6  Jones  540,  17  N.  W.,  888.  And  see  Jung 
Eq.  (N.  C),  83,  78  Am.  Dec,  241;  v.  Neraz,  71  Tex.,  396,  9  S.  W.,  344. 


758  INJUNCTIONS.  [chap.  Xllt. 

a  nuisance  in  the  neighborhood  of  their  premises,  the  relief 
was  denied,  upon  the  ground  that,  as  each  of  the  plaintiffs 
had  a  separate  nuisance  to  complain  of,  that  which  would 
be  an  answer  to  one  would  not  be  an  answer  to  the  (others.-'' 
But  as  regards  the  defendants  to  the  action,  it  is  held  that 
when  the  owner  of  the  premises  grants  a  license  to  another 
person  to  do  an  act  upon  the  premises  which  amounts  to  a 
nuisance,  such  as  the  burning  of  brick,  the  injunction  may 
go  against  the  owner  as  well  as  against  the  person  actually 
committing  the  nuisance.^*^ 

29  Hudson  V.  Maddison,  12  Sim.,         "o  White  v.   Jameson,  L.    R.     18 
416.  Eq.,  303. 


CHAP.  XIII.]  AGAINST  NUISANCE.  759 


IV.    Nuisances  to  Water. 

§  794.     Foundation  of  the  jurisdiction. 

795.  When  relief  granted. 

796.  Plaintiff's  right  should  be  established;   diversion  of  water  from 

mills. 

797.  Plaintiff's  delay  and  acquiescence. 

798.  Right  to  relief  extends  to  quality  as  well  as  quantity  of  water; 

when  relief  denied. 

799.  Right  by  prescription. 

800.  Limitations  upon  doctrine  of  adverse  enjoyment. 

801.  Subterranean   streams;    cemetery;    digging   well. 

802.  Construction  of  levee  enjoined. 

803.  Improvements   in   navigable   streams;    suit   by  United    States; 

court  need  only  have  jurisdiction  of  person. 

804.  Mandatory  injunction. 

805.  Discharge  from  mine. 

806.  When  relief  allowed  between  tenants  in  common. 

807.  Waste  of  water  supplying  mill. 

808.  Restrictions  upon  the  relief. 

809.  Questions  of  surface  water. 

810.  Pollution  of  streams  by  sewage. 

811.  The  same. 

812.  Navigable  rivers;   erection  of  wharves;   obstructions. 

813.  Riparian  owners  allowed  relief. 

814.  Logs  and  booms;   obstruction  by  railway. 

815.  Regatta  upon  lake;    pollution  of  fish  ponds. 
815a.  Raising  or  lowering  of   lake  level. 

§  794.  Foundation  cf  the  jurisdiction.  The  interference 
of  equity  by  the  writ  of  injunction  is  frequently  invoked  to 
restrain  nuisances  to  water  and  the  infringement  of  riparian 
rights.  As  an  incident  to  the  ownership  of  the  adjacent  soil, 
a  riparian  proprietor  has  an  interest  of  a  usufructuary  nature 
in  the  water  flowing  past  his  land,  which  equity  will  pro- 
tect. This  right  or  interest  being  common  to  all  owners 
of  land  adjacent  to  a  stream,  no  proprietor  can,  in  the  ab- 
sence of  a  right  to  exclusive  enjoyment,  use  the  water  in 
such  manner  as  to  injure  adjoining  proprietors.  Nor  can  he, 
unless  authorized  by  adjacent  owners,  divert  the  water  from 
its   natural    course,   to    the    injury    of    the    owner    below,    or 


760  INJUNCTIONS.  [chap.  XIII. 

change  its  quality,  or  diminisli  its  quantity,  or  cause  it  to 
flow  back  upon  the  proprietor  above.^  And  the  test  to  be 
applied  in  such  cases  is  whether  the  use  of  the  water  is  such 
as  to  cause  a  substantial  injury  to  other  proprietors  in  their 
common  right.^  The  jurisdiction  of  equity  in  this  class  of 
cases  may  be  regarded  as  'ancient  and  well  established.  It 
is  founded  upon  the  pressing  necessity  of  immediate  relief 
being  granted  where,  in  the  absence  of  such  relief,  perma- 
nent mischief  and  lasting  injury  might  result,^  and  also  rests 
upon  the  necessity  of  preventing  multiplicity  of  suits.*  And 
the  right  being  established,  together  with  the  wrongful  in- 
terruption of  that  right  tending  to  the  great  injury  of  the 
person  aggrieved,  equity  will  interfere.^  And  while  an  in- 
junction will  not  ordinarily  be  granted  unless  positive  and 
substantial  injury  be  shown,  yet  where  adverse  rights  are 
likely  to  arise,  it  may  be  allowed,  even  though  the  injury 
is  trivial,  to  the  extent  of  vindicating  the  plaintiff's  rights 
and  of  preventing  their  loss  by  adverse  user  or  lapse  of 
time.^ 

§  795.  When  relief  granted.  "Where  the  extent  of  the  in- 
juries resulting  from  the  invasion  of  the  right  is  difficult  of 
estimation,  an  injunction  is  regarded  as  the  most  efficient 
remedy.''^   And  riparian  proprietors,  owning  to  the  center  of  a 

1  Webb  V.  Portland  Mfg.  Co.,  3  *  Lyon  v.  McLaughlin,  32  Vt., 
Sumner,  189;    Bealey  v.    Shaw,    6     423. 

East,   208 ;    Mason  v.   Hill,   5  B.   &  ^'  Gardner  v.  Newburgh,  2  Johns. 

A.,  1;   McCormick  v.  Horan,  81  N.  Ch.,  162,  and.  cases  cited;    McCor- 

Y.,  86;  Rigney  v.  Tacoma  L.  &  W.  mick  v.  Horan,  81  N.  Y.,  86. 

Co.,  9  Wash.    &76,  37  Pac,  297,  23  e  Ulbricht  v.  Eufaula  Water  Co., 

L.  R.  A     425;  Roberts  v.  Gwyrfai  86  Ala.,  587,  6  So.,  78,  4  L.  R.  A., 

District  Council,  (1899)  2  Ch.,  608;  572,  11  Am.  St.  Rep.,  72;  dictum  in 

Saunders   v.   Bluefield   W.  Co.,    58  Franklin  v.   Pollard   Mill    Co.,    88 

Fed.,  133.  Ala.,  318,  6  So.,  685. 

2  Tyler  v.  Wilkinson,  4  Mason,  7  Lyon  y.  McLaughlin,  32  Vt.,  423. 
397.  See  also  Weiss  v.  Oregon  L  The  court  say:  "Where  the  inva- 
&  S.  Co.,  13  Ore.,  496,  11  Pac,  255.  sion   of   a   right  of   this    kind    of 

3  Gardner  v.  Newburgh,  2  J*ohns.  property  is  threatened  and  in- 
Ch.,  162,  and  cases  cited.  tended,  which  is  necessarily  to    b^ 


CHAP,  XIII.]  AGAINST  NUISAXCE.  761 

stream,  are  entitled  to  the  aid  of  equity  to  prevent  a  diver- 
sion of  the  waters  from  their  natural  channel.  Nor  does  the 
neglect  of  complainants  to  use  or  appropriate  the  water- 
power,  or  the  fact  that  they  have,  as  yet,  sustained  but 
small  pecuniary  damage,  or  that  defendants  would  be  sub- 
jected to  heavy  expense  if  compelled  to  restore  the  water  to 
its  original  channel,  present  such  objections  as  would  war- 
rant a  court  of  equity  in  refusing  the  relief.^  And  where  one 
owns  land  on  both  sides  of  a  stream  not  navigable,  and  never 
declared  a  public  highway,  he  is  entitled  to  an  injunction 
to  restrain  the  floating  of  logs  down  his  stream  to  the  in- 
jury of  his  premises.^  And  where,  in  such  case,  different 
parties  assert  the  same  right  to  the  use  of  the  stream,  they 
may  be  joined  as  defendants  in  the  same  action.^^  But  the 
floating  of  logs  down  a  navigable  river,  which  has  been  al- 
lowed under  color  of  legislative  authority  for  many  years, 
will  not  be  enjoined  as  a  nuisance  at  the  suit  of  a  steam- 
boat proprietor  navigating  the  river,  plaintiff's  right  not 
having  been  established  at  law  and  there  having  been  long 
acquiescence  in  the  action  of  defendant.^  ^ 

§796.  Plaintiff's  right  should,  be  established;  diversion  of 
water  from  mills.  In  general  it  must  be  made  to  appear  that 
complainant's  right  to  enjoy  the  land  has  been  satisfactorily 
established  at  law.^-     And  where  this  does  not  appear,  and 

continuing    and    operate    prospec-  sense  of  the  law   relating  to  this 

tively  and  indefinitely,  and  the  ex-  subject." 

tent  of  the  injurious  consequences  «  Corning  v.  Troy  Factory,  40  N. 

is  contingent  and  doubtful  of  esti-  Y.,  191,  affirming  S.  C,  34   Barb., 

mation,  the  writ  of  injunction   is  485,     39     Barb.,    311;       Tuolumne 

not  only    permissible,    but    is  the  Water   Co.    v.    Chapman,     8      Cal., 

most  appropriate   means    of    rem-  392;   Weiss  v.  Oregon  I.  &  S.  Co., 

edy.     It  affords,   in  fact,  the  only  13  Ore.,  496,  11  Pac,  255. 

adequate  and  sure  remedy.       The  ^  Curtis  /;.  Keesler,  14  Barb.,  511. 

very  doubtfulness  as  to  the  extent  lo  Meyer  r.  Phillips,  97  N.  Y.,  485. 

of  the  prospective  injury  and  the  n  Herrman  t;.  Beef  Slough  M.  Co., 

impossibility    of    ascertaining    the  1  Fed.,  145. 

measure  of  just  reparation  render  ^-  Coe    v.  Winnipiseogee  Co.,    3» 

such  an  injury  irreparable  in  the  N.  H.,   255;    Weller  v.   Smeaton,  1 


762  INJUNCTIONS.  [chap.  XIII. 

it  is  not  alleged  that  there  is  danger  of  irreparable  mis- 
chief or  of  injury  not  susceptible  of  compensation  in  a  suit 
at  law,  the  bill  is  obnoxious  to  a  demurrer  for  want  of 
equity.^^  A  diversion  of  water  from  complainant's  mills, 
where  valuable  and  extensive  machinery  is  being  used  and 
employment  furnished  to  a  large  number  of  men,  consti- 
tutes a  sufficient  ground  for  an  injunction.^^  But  the  con- 
struction of  an  artificial  channel  which  merely  has  the  effect 
of  giving  more  direct  course  to  water  which  had  from  time 
immemorial  drained  off  through  a  natural  outlet,  will  not  be 
enjoined,  the  volume  of  water  not  being  increased.^ ^  Nor 
will  the  diversion  of  water  be  enjoined  at  the  suit  of  one 
mill  owner  against  others  when  it  is  not  shown  that  the  in- 
jury is  of  a  permanent  or  irreparable  nature.^  "^  And  a  court 
of  equity  will  not  in  limine  and  before  a  determination  of 
the  legal  right  restrain  an  upper  proprietor  from  diverting 
water  from  a  non-navigable  stream  when  no  injury  has  yet 
been  sustained  and  the  question  of  injury  is  conjectural, 
and  when  the  granting  of  an  injunction  would  result  in  ir- 
reparable injury  to  the  defendant.^''' 

§797.  Plaintiff's  delay  and.  acquiescence.  While  a  court 
of  equity  may  interfere  for  the  protection  of  the  legal  right 
to  the  use  of  water  in  a  stream  which  is  being  fouled,  and 
whose  value  is  being  impaired  for  manufacturing  purposes, 
by    defendant's   works   farther   up    the    stream,   yet    if   com- 

Cox,  102;   Meyer  v.  Phillips,  97  N.  title  at  law  where  the  averments 

Y.,    485.        See    also     Burnham    v.  of  his  rights  are  admitted  by  de- 

Kempton,  44  N.   H.,  78.     But  see,  miirrer.      Tuolumne  Water   Co.   v. 

contra.   Corning   v.    Troy   Factory,  Chapman,  8  Cal.,  302. 
40   N.  Y.,   191,  affirming  S.   C,  34         i^  Wright  v.  Moore,  38  Ala.,  593. 
Barb.,  485,  39  Barb.,  311;  Morris  i:         lo  potier's   Executors  v.   Burden, 

Central,   1   C.   E.   Green,  419;     Bu-  38  Ala.,  651. 

chanan    v.    Grand    River     Co.,     48         i«  Westbrook  M.  Co.  v.    Warren, 

Mich.,  364,  12  N.  W.,  490.  77  Me.,  437,  1  Atl.,  246;  Haskell  v. 

':»Coe   V.    Winnipiseogee  Co.,    37  Thurston,  80  Me.,  129,  13  Atl.,  273. 
N.  H.,  255.  But  it  is  held  that  com-         i^  Walton  v.  Mills,  86  N.  C,  280. 
plainant  need  not  first  establish  his 


CHAP.  XIII.]  AGAIXST  NUISANCE.  763 

plainants  have  not  used  due  diligence  in  the  assertion  of 
their  rights,  and  have  for  a  long  period  allowed  defend- 
ants to  erect  and  operate  their  works  without  objection,  an 
injunction  will  be  refused,  especially  when  the  injury  com- 
plained of  can  be  compensated  in  damages  at  law,  and  when 
the  granting  of  the  relief  would  inflict  serious  injury  upon 
defendants,  without  doing  any  practical  good  to  complain- 
ants.^^ 

§  798.  Rig"ht  to  relief  extends  to  quality  as  well  as  quantity 
of  water;  when  relief  denied.  The  right  of  the  owner  of  the 
realty  through  which  a  stream  of  water  flows  to  the  un- 
interrupted use  and  enjoyment  of  the  stream,  extends  to 
the  quality  as  well  as  to  the  quantity  of  the  water.^^  Hence 
any  use  of  the  water  which  operates  to  destroy  health  or  to 
diminish  the  comfort  of  a  riparian  owner  will  be  enjoined  as 
a  constantly  recurring  injury,  irreparable  in  its  nature  and 
not  susceptible  of  adequate  compensation  in  damages.-*^  And 
a  court  of  equity  will  enjoin  the  fouling  of  a  stream  in  such 
manner  as  to  be  injurious  to  the  owner  of  dye-works,  sit- 
uated further  down  the  stream,  by  rendering  the  water  unfit 
for  dyeing  purposes.-^  So  the  owner  of  pulp  works  situated 
upon  the  banks  of  a  stream  of  clean  water  may  enjoin  the 
owner  of  a  morocco  factory  from  discharging  the  refuse  of 
the  factory  into  the  stream,  thereby  polluting  the  water 
and  rendering  it  unfit  for  plaintifl^'s  use.^-  So  the  depositing 
of  saw  dust  and  other  debris  from  saw  mills  to  such  an 
extent  as  to  interfere  seriously  with  and  impair  the  opera- 
is  Wood  V.  Sutcliffe,  2  Sim.  N.  S.,  dlestadt  v.  W.  S.  &  P.  Co.,  93  Wis., 
163.  1,    66    N.     W.,     713;      Indianapolis 

13  Bealey  v.  Shaw,  6  East,  208.  Water  Co.  v.  American  Strawboard 
See  Davis  v.  Lambertson,  56  Barb.,  Co.,  53  Fed.,  970;  S.  C,  on  final 
480.  hearing,  57  Fed.,  1000. 

20  Holsman  v.  Boiling  Spring  21  Clowes  i\  Staffordshire  Co.,  L. 
Bleaching  Co.,  1  McCart.,  335;  Lew      R.   8  Ch.,  125. 

is  V.  Stein,  16  Ala.,  214;  Mayor  v.  22  Jessup  &  Moore  Paper  Co.,  v. 
Warren   M.   Co.,  59   Md.,   96;    Mid-     Ford,  6  Del.  Ch.,  52,  33  Atl.,  618. 


764  INJUNCTIONS.  [chap.  XIII. 

tion  of  plaintiff's  mills  situated  below  and  upon  the  same 
stream,  thereby  causing  a  constant  and  irreparable  injury, 
may  be  enjoined.^^  And  it  is  proper,  in  such  case,  to  join 
as  defendants  several  mill  owners  the  refuse  from  whose 
different  mills  commingles,  it  being  impossible  to  determine 
the  extent  to  which  each  mill  contributes  to  the  nuisance. ^^ 
And  the  pollution  of  a  running  stream  used  for  domestic 
purposes,  the  watering  of  cattle  and  the  cutting  of  ice,  by 
the  underdraining  of  a  cemetery,  may  be  enjoined,  the  relief 
being  granted  even  though  the  water  has,  to  a  certain  extent, 
been  rendered  unwholesome  by  the  washings  of  manured 
lands  in  the  vicinity.-^  So  the  lower  riparian  owner  who 
uses  the  water  of  a  stream  for  live  stock  purposes  may  en- 
join the  defendant  from  polluting  the  water  and  injuring 
the  flow  by  discharging  into  it  the  manure  and  offal  from 
extensive  cattle  feeding  barns  in  such  manner  as  to  injure 
the  stream  for  husbandry.^"^  So  the  existence  of  privies  and 
hog-pens,  from  which  filth  and  excrement  are  discharged  into  a 
stream  from  which  the  supply  of  water  for  a  city  is  obtained, 
affords  sufficient  ground  for  an  injunction.  But  upon  a  bill 
by  one  riparian  owner  to  enjoin  the  pollution  of  a  stream 
by  another,  the  burden  of  proof  as  to  the  fact  of  nuisance 
rests  upon  plaintiff',  and  unless  the  existence  of  the  nui- 
sance is  satisfactorily  shown  an  injunction  will  not  be  granted 
in  the  first  instance.-'^  So  when  plaintiff  fails  to  show  that 
he  has  yet  sustained  any  actual  injury  or  pollution  of  the 
water  to  which  he  is  entitled,  and  when  by  the  use  of  due 
care  on  the  part  of  defendant  all  injury  may  be  prevented, 

23  Lockwood  Co.  ?;.  Lawrence,  77  Cemetery  Assn.,  159  111.,  385,  42  N. 
Me.,   297;    Canfield  v.  Andrew,    54  •  E.,  891,   31  L.  R.  A.,   109,  50  Am. 

Vt.,  1.  St.  Rep.,  168. 

^*  Lockwood  Co.  v.  Lawrence,  77  -"Barton    v.    Union    C.    Co.,  28 

Me.,  297.     And  see  this  case  as  to  Neb.,  350,   44  N.   W.,  454,  7  L.  R. 

the    right    of    defendants    by    pre-  A.,  457,  26  Am.  St.  Rep..  340. 

senption  in  such  case.  '-"  Mayor   v.   Warren   M.   Co.,   oS* 

■^■'  Barrett     v.     Mt.      Greenwood  Md.,  90. 


CHAP.  XIII.]  AGAINST  NUISANCE.  765 

an  injunction  may  be  refused,  without  prejudice  to  the 
bringing  of  another  action  in  the  future.^s  And  it  is  to 
be  observed  that  past  injuries  afford  no  ground  for  the  re- 
lief, and  where  it  does  not  certainly  appear  that  the  diver- 
sion of  the  water  will  be  repeated,  or  that  there  is  danger 
of  its  being  repeated,  to  the  injury  of  complainant,  the  in- 
junction will  not  be  allowed.^^  And  it  is  held  that  an  in- 
junction will  not  lie  against  a  defendant  who  sinks  an  arte- 
sian well  upon  his  premises  and  uses  the  water  for  the  pur- 
pose of  bathing  the  patients  in  a  sanitarium  and  hospital 
located  upon  his  land,  to  restrain  him  from  allowing  the 
water  thus  used  to  flow  into  a  stream  which  is  the  natural 
watercourse  of  the  basin  in  which  the  well  is  situated,  it 
appearing  that  the  defendant  is  free  from  negligence  or 
malice  and  is  using  all  due  care  to  avoid  injury  to  his  neigh- 
Ijor.^*^ 

§  799.  Right  by  prescription.  Adverse  possession  and  ex- 
ercise of  the  right  of  diverting  the  water  for  twenty  years 
is  sufficient  to  raise  a  presumption  of  a  grant,  and  to  defeat 
■complainant's  right  to  an  injunction  against  a  private  nui- 
sance.^i  And  this  upon  the  principle  that  as  twenty  years' 
possession  gives  rise  to  a  presumption  of  a  grant,  so  a  non- 
nser  for  that  length  of  time  will  put  an  end  to  the  pre- 
sumption.2-  But  the  extent  of  the  prescriptive  right  must  be 
limited  by  the  actual  enjoyment,  and  must  be  commensurate 

2s  Fletcher  v.  Bealey,.  28  Ch.  D.,  58;    Holsman     v.     Boiling   Spring 

€88.  Bleaching     Co.,     1     McCart,   335; 

2'J  Society    v.    Morris    Canal      &  McCallum    v.   Germantown,  54   Pa. 

Banking   Co.,   Saxt.,   157;     Potier's  St.,  40.    But  in  the  case  of  a  public 

Executors  i\  Burden,  38  Ala.,  651;  nuisance    it   would    seem    that    no 

Cobb  V.  Smith,  16  Wis.,  661.  length  of  user  and  occupancy,  how- 

30  Barnard  v.  Sherley,  135  Ind.,  ever  extended  and  under  whatever 
647,  34  N.  E.,  600,  35  N.  E.,  117,  claim  of  right,  will  avail.  Roches- 
24  L.  R.  A.,  568,  41  Am.  St.  Rep.,  ter  r.  Erickson,  46  Barb.,  92. 

454.  32  Shields  v.  Arndt,  3  Green  Ch.. 

31  Shields  r.  Arndt,  3  Green  Ch.,     234. 
234;    Coalter   v.   Hunter,  4    Rand., 


766  INJUNCTIONS.  [chap.  XIII. 

with  that  enjoyment.'^^  And  to  bring  a  case  within  the 
rule,  the  possession  of  the  one  must  be  so  inconsistent  with 
the  rights  of  the  other  as  to  amount  to  an  actual  ouster.^* 
Upon  the  other  hand,  the  right  of  the  riparian  owner  to 
Drotection  may  its«lf  arise  from  prescription.  Thus,  where 
a  change  is  made  in  the  natural  flow  of  a  water  course,  as  by 
a  canal  company  in  erecting  embankments  and  structures 
which  protect  the  land  of  riparian  owners  from  overflow, 
and  this  use  of  the  stream  is  acquiesced  in  for  so  long  a 
period  as  to  give  a  right  by  prescription  or  limitation,  a 
riparian  owner  may  enjoin  the  removal  of  such  structures 
which   would   cause   the   water   to   overflow   his   land.-*^'^ 

§  800.  Limitations  upon  doctrine  of  adverse  enjoyment. 
The  person  gaining  a  right  to  the  use  of  water  by  adverse 
enjoyment  for  the  required  period  is  entitled  to  what  he 
has  enjoyed  during  that  period,  and  to  no  more."*^  Thus, 
if  he  has  exercised  the  right  to  use  the  water  upon  certain 
days  of  the  week  or  in  certain  quantities,  he  can  not  use  it 
upon  other  daj^s  or  in  difl:'erent  :iuantities.^'^  And  the  user 
must  clearly  appear  to  have  been  adverse  to  the  right  of  the 
other  owner,  and  where  the  use  of  the  water  was  originally 
granted  as  a  loan  without  consideration,  and  was  afterward 
continued  as  a  loan,  equity  will  withhold  its  aid.^s  And  the 
owner  of  an  upper  tract  of  land,  who  has  for  more  than  five 
years  enjoyed  the  undisturbed  privilege  of  flowing  the  waste 
water  used  from  artificial  sources  for  irrigating  his  prem- 
ises, does  not  thereby  acquire  an  easement  to  flow  the  water 
over  lower  lands  to  such  an  extent  as  to  seriously  injure 
them,  and  may  be  enjoined  from  so  doing.^'-^ 

•>•■'  Holsman     r.     Boiling    Spring  Davies  r.  Williams,  16  Q.  B.,  546. 

Bleaching  Co.,  1  McCart,  335.  s"  Strutt  v.   Bovingdon,    5    Esp., 

■■'*  Pratt  V.  Lamson,  2  Allen,  275.  56;  Brown  v.  Best,  1  Wils.,  174. 

•'!•"'  Biirk   r.   Siraonson,    104    Ind.,  •*'<  Coalter  v   Hunter,  4  Rand.,  58. 

173,  2  N.  E.,  309,  3  N.  E.,  826.  •■i'>  Blaisdel    v.  Stephen.R   14  Nev., 

•■!••' Bea'.ey  v.   Shaw,  6  East,    208;  17. 


CHAr.  XIII.]  AGAINST  NUISANCE.  767 

§801.  Subterranean  streams;  cemetery;  digging  well.  Since 
it  is  impossible  to  establish  correlative  rights  in  subterranean 
streams,  the  situation  of  which  is  not  known,  an  injunction 
will  not  be  granted  against  the  construction  of  a  cemetery, 
on  the  ground  that  the  drainage  from  the  subterranean 
streams  would  destroy  the  use  of  complainant's  spring  and 
greatly  injure  his  land."*^  And  the  digging  of  a  well 
on  one's  own  premises,  the  result  of  which  is  to  dry  up  a 
spring  upon  adjoining  premises,  does  not  warrant  a  court  of 
equity  in  interfering,  there  being  no  apparent  or  visible  con- 
nection between  the  well  and  the  spring,  and  the  water 
merely  percolating  into   defendant's   lancl.-*^ 

§  802.  Construction  of  levee  enjoined.  The  construction 
of  a  levee  may  be  enjoined  where  its  effect  would  be  to  ob- 
struct the  drainage  of  water  from  complainant's  land,  and, 
by  causing  its  overflow,  prove  injurious  to  health,  i^^icl  in 
such  ease  the  relief  may  also  be  granted  where  complain- 
ant's rights  have  not  been  concluded  by  payment  of  just  com- 
pensation for  the  loss  or  injury,  the  damage  promising  to  be 
irreparable,  and  the  jurisdiction  is  regarded  as  inherent  in 
the  powers  of  a  court  of  chancery."*- 

§  803.  Improvements  in  navigable  streams ;  suit  by  United 
States;  court  need  only  have  jurisdiction  of  person.  A  bill 
will  lie  in  behalf  of  the  United  States  for  an  injunction  to 
protect  improvements,  which  are  being  made  by  authority  of 
Congress  in  navigable  waters,  from  injury  by  works  carried 
on  under  authority  of  a  state.'*^  And  the  United  States  has 
such  a  property  right  in  the  navigable  rivers  of  the  country 
as  will  enable  it  to  maintain  a  bill  to  restrain  the  unlawful 
obstruction   of  such  waters.'*'*     But  where   the   injury   appre- 

40  Greencastle  i\  Hazelett,  23  Ind.,  43  United  States  r.  Duluth,  1 
186.  Dill.,  469. 

41  Hosier  i\  Caldwell,  7  Nev.,  '4  North  Bloomfield  G.  M.  Co.  r. 
363;  Trustees  r.  Youmans.  45  N.  Y..  United  States,  32  C.  C.  A.,  84,  8S 
362,  affirming  S.  C,  50  Barb.,  316.  Fed.,  664. 

42  Martin,  Ex  parte,  13  Ark.,  198. 
49 


768  INJUNCTIONS.  [cnAP.  XIII. 

hended  from  an  alteration  in  a  navigable  stream  by  agents  of 
the  government  is  mere  matter  of  opinion,  and  is  denied  by 
defendant,  the  injunction  will  be  refused,^-^  It  is  also  to  bo 
observed  that  the  remedy  by  injunction  being  primarily  tn 
personam,  a  nuisance  consisting  of  an  injury  to  water  rights 
may  be  enjoined  in  the  state  which  has  jurisdiction  of  the 
person  committing  the  injury,  regardless  of  the  locus  of  the 
nuisance  itself.-**^' 

§  804.  Mandatory  injunction.  Although  a  court  of  equity 
will  not  grant  a  mandatory  injunction  to  restore  the  banks 
of  a  canal  and  to  make  other  repairs  upon  and  about  canals 
and  reservoirs  leased  by  defendant  to  cooiplainant,  yet  sub- 
stantially the  same  result  may  be  attained  by  an  order  re- 
straining defendant  from  impeding  or  hindering  complainant 
in  the  use  of  the  water  granted  by  his  lease,  by  continuing 
to  keep  the  canals  and  works  out  of  repair,  and  by  divert- 
ing the  water  and  hindering  complainant  in  its  use.^'^  And 
a  mandatory  injunction  may  be  granted  to  compel  the  res- 
toration of  water  to  its  natural  channel  which  has  been 
wrongfully    diverted    therefrom.-^'^      So    relief    by    mandatory 

45  Avery  v.  Fox,  1  Abb.  U.  S.  R.,  spontlents  from  bringing  an  action 

246;  United  States  v.  Mississippi  &  at  law  in  Ireland  on  a  bill  of  ex- 

R.  R.  B.  Co.,  1  McCrary,  601.  And  change  given  for  a  gambling  debt. 

in  Avery  i'.  Pox,  1  Abb.U.  S.  R.,  But  see,  contra,  Stillman  v.  White 

246,  it  is  held  that  where  Congress  Rock  Manufacturing  Co.,  3  Woodb. 

entrusts  an  appropriation  for  pub-  &  M.,  538,  where  it  is  held  that  the 

lie  improvements  to  one  of  the  de-  jurisdiction  is  in  rem,  and  that  a 

partments,  which  in  turn  employs  nuisance  consisting  of  a  diversion 

agents  to  do  the  work,  this  depart-  of  water  from  a  river  which  is  the 

ment  and    its   agents  may  be    re-  boundary  line  between  two  states 

strained  from  doing  the  work  in  an  must     be    enjoined    in    the    state 

improper  manner,  even  though  an  where  the  nuisance  is  located.  And 

injunction  will  not  lie  against  the  see,  ante,  §  33. 

United  States.  47  Lane  v.  Newdigate,  10  Ves.,  192. 

•»«  Great  Falls  v.  Worster,  23  N.  4.s  Corning  r.  Troy  Factory,  40  N. 

H.,  462.       And  in  Portarlington  v.  Y.,   191,  affirming  S.  C,  34  Barb., 

Soulby,  3  Myl.  &  K.,  104,  the  same  485,   39   Barb.,  311.     This   was   an 

principle    was    recognized    upon    a  action  for  a  mandatory  injunction 

bill  filed  in  England  to  restrain  re-  to  compel  defendants  to  restore  a 


CHAP.  XIII.] 


AGAINST  NUISAXCE, 


769 


injunction  has  been  granted  to  compel  defendants  to  fill  up  a 
ditch  which  they  had  deepened  for  the  purpose  of  leading 
surface  water  from  their  lands,  resulting  in  serious  injury  to 
the  lands  of  adjoining  owners.^'-' 

§  805.  Discharge  from  mine.  The  filling  up  of  the  original 
channel  of  a  stream  with  the  refuse  and  offcast  from  an 
adjacent  mine,  to  such  an  extent  as  to  back  the  water  up 
to  complainant's  mill-dam,  constitutes  such  a  nuisance  as  to 
warrant  relief  by  injunction.  And  where  defendants  in  such 
case  persist  in  making  deposits  of  earth  in  such  manner  as 
to  obstruct  the  flow  of  the  water,  to  the  manifest  injury  of 
complainant,   the   injunction  will  be   continued.^*^     So  a  per- 

plaintiffs  to  the  equitable  relief 
sought  is  established  by  authority 
as  well  as  principle.  (Webb  v.  The 
Portland  Manufacturing  Co.,  3 
Sumner,  190,  and  cases  cited;  Tyler 
V.  Wilkinson,  4  Mason,  400;  Town- 
send  r.  McDonald,  2  Kernan,  381; 
2  Story's  Equity,  §§  901,  926-7; 
Angell  on  Water  Courses,  §§  449- 
50.)  It  is  further  insisted  by  the 
defendant  that  equity  will  not  in- 
terpose until  the  right  has  been 
settled  at  law.  That  formerly  was 
the  universal  rule,  where  there 
was  any  substantial  doubt  as  to 
the  legal  right.  (Gardner  v.  The 
Trustees  of  Newburgh,  2  John.  Ch., 
1G2.)  But  that  rule  no  longer  pre- 
vails in  this  state.  We  have  be- 
fore seen  that  all  the  relief  to 
which  a  party  is  entitled,  arising 
from  the  same  transaction,  may, 
under  the  code,  be  obtained  in  one 
suit.  Besides  there  is  no  doubt  as 
to  the  legal  right  in  the  present 
case." 

40  Foot  r.  Bronson,  4  Lans.,  47. 

f5o  Lamborn  r.  Covington  Com- 
pany, 2  Md.  Ch.    409. 


stream  of  water  to  its  natural 
channel  and  thus  allow  plaintiffs 
the  use  to  which  they  were  entitled. 
Grover,  J.,  says:  "Upon  estab- 
lished principles  this  is  a  proper 
case  of  equity  jurisdiction.  First, 
upon  the  ground  that  the  remedy 
at  law  is  .inadequate.  The  plaint- 
iffs are  entitled  to  the  flow  of  the 
stream  in  its  natural  channel. 
Legal  remedies  can  not  restore  it 
to  them  and  secure  them  in  the 
enjoyment  of  it.  Hence  the  duty 
of  a  court  of  equity  to  interpose 
for  the  accomplishment  of  that  re- 
sult. A  further  ground  requiring 
the  interposition  of  equuy  is  to 
avoid  multiplicity  of  actions.  If 
equity  refuses  its  aid,  the  only 
remedy  of  the  plaintiffs,  whose 
rights  have  been  estrblished,  will 
be  to  commence  suits  from  day  to 
day,  and  thus  endeavor  to  make  it 
for  the  interest  of  the  defendant  to 
do  justice  by  restoring  the  stream 
to  its  channel.  If  the  plaintiffs 
have  no  other  means  of  recovering 
their  rights,  there  is  a  great  defect 
in  jurisprudence.  But  there  is  no 
such   defect.       The   right    of    the 


770  INJUNCTIONS.  rCHAP.  XIII. 

petual  injimction  will  be  granted  to  restrain  defendants 
from  discharging  water  from  their  mines  and  colliery  into  a 
stream  to  the  injury  of  plaintiff's  work  and  mill  below,  the 
water  thus  pumped  from  defendant's  mine  into  the  stream 
being  charged  with  sulphuric  acid  and  other  deleterious  mat- 
ters, causing  great  injury  to  plaintiff's  boilers  and  other 
machinery.^^  So  an  injunction  will  lie  to  restrain  the  dis- 
charge of  the  refuse  of  a  coal  mine  into  a  running  stream, 
resulting  in  the  accumulation  of  coal  dust  upon  the  dam  of  a 
mill  owner  further  down  the  stream,  thereby  impairing  the 
latter 's  water  power.^-  So  a  mining  company  may  be  enjoined 
in  a  suit  by  a  lower  mill  owner  from  discharging  turbid  and 
discolored  water  from  its  mines  into  a  river,  thereby  discolor- 
ing the  water  and  rendering  it  unfit  for  plaintiff's  use  in  the 
manufacture  of  white  tissue  paper;  and  in  such  case  it  is  no 
defense  that  the  river  is  more  or  less  polluted  by  the  discharge 
of   other   mines."^-'^ 

■  §  806.  When  relief  allowed  between  tenants  in  common. 
The  relief  is  sometimes  sought  between  tenants  in  common  of 
water  privileges,  and  the  fact  of  co-tenancy  will  not  prevent 
the  exercise  of  the  jurisdiction.^^  Thus,  where  the  parties  are 
tenants  in  common  of  a  mill,  mill-dam  and  water  privilege, 
one  of  the  co-tenants  will  be  restrained  from  diverting  the 
water  to  a  private  mill  of  his  own  in  such  manner  as  to  prevent 
complainant's  manufactory  from  running  except  for  a  short 
time  daily.^^  So  where  tenants  in  common  of  a  mill  and  dam 
are  entitled  to  their  use  alternately  in  proportion  to  their 
interests,  one  of  them  will  be  restrained  from  diverting  the 
water  through  a  private  channel  on  his  own  premises  during 
the   other's   term    of   use.'"'^     But   equity    will   not   enjoin   an 

^1  Pennington    v.    Brinsop    Hall  ''^  Kennedy   r.    Scovil,  12    Conn., 

Coal  Co.,  5  Ch.  D.,  769.  316;  Bliss  r.  Rice,  17  Pick.,  23. 

fis  Keppel  r.   L.   C.  &  N.  Co.,  200  r,n  Kennedy    c.   Scovil,    12    Conn., 

Pa.  St.,  649,  50  At!.,  302.  316. 

cs  Beach  v.  Sparks   Mfg.   Co.,  54  ■■^■'  Bliss  r.  Rice,  17  Pick.,  23.   But 

N.  .T.  Eq.,  r,r,.  33  Atl.,  286.                 •  the  court  holding  that  each  co-ten- 


CHAP.  XIII.]  AGAINST  NUISANCE.  771 

alleged  nuisance  consisting  in  an  interference  with  plaintiff's 
water-power  and  mill  privileges,  when  the  parties  are  in  dis- 
pute as  to  their  legal  rights,  and  when  no  irreparable  injury 
is  shown  and  no  necessity  for  the  prevention  of  a  multiplicity 
of  suits,  but  will  leave  the  parties  to  a  litigation  at  law  to 
determine   their  disputed  legal  rights.^'^ 

§  807.  Waste  of  water  supplying  mill.  Equity  may  properly 
restrain  defendants  from  wasting  water  running  to  complain- 
ants' mill,  and  thereby  diminishing  their  water  power.^^  If, 
however,  the  injury  is  small  and  can  be  adequately  compen- 
sated in  damages,  equity  will  not  interfere,  but  will  leave  the 
parties  to  their  remedy  at  law.  Nor  in  such  a  case  will  it 
avail  complainant  that  he  has  established  his  right  at  law.^^' 

§  808.  Restrictions  upon  the  relief.  It  is  also  held  that  to 
entitle  one  to  an  injunction  against  a  nuisance,  he  must  show 
that  he  has  sustained  such  a  substantial  injury  by  the  acts  of 
defendant  as  would  have  entitled  him  to  a  verdict  in  an  action 
at  law  for  damages.  And  when  this  is  not  shown,  and  when 
it  does  not  appear  that  defendant's  use  of  the  water  really  is 
a  nuisance,  equity  will  decline  to  interfere  and  will  leave  the 
question  to  be  determined  at  law.  Nor  will  a  diversion  of 
water  in  a  stream  be  enjoined  when  the  stream  is  restored  to 
its  old  channel  by  defendant  before  it  enters  upon  plaintiff's 

ant  had  a  right  during  his  term  to  defendants  raised  the  gate   of    the 

use  the  whole  of  the  water  in  such  reservoir,  allowing    the    water    to 

way  as  he  chose,  without  injury  to  escape.       An  injunction  was    held 

the  common  property,    refused    to  to  be   the   proper   remedy   on    the 

enjoin    defendant    to    fill    up    his  ground  that  the  injury  was  a  pri- 

channel,  or  to  desist  from  drawing  vate  nuisance,  and  a  statute  giving 

water  by  such  channel  during    his  the  court  jurisdiction  in  equity  in 

own  term  of  using  the  mill.  all  cases  of  nuisance,  the  relief  was 

57  Burnham  v.  Kempton,  44  N.  proper,  the  remedy  at  law  not 
H.,  78.  being    plain,     adequate     and    suffi- 

58  Ballon  V.  Inhabitants  of  Hop-  cient.  And  see  Bemis  i\  Upham, 
kinton,  4  Gray,  324.  In  this  case  13  Pick.,  169,  a  case  arising  under 
complainants    had    erected    a  res-  the  same  statute. 

ervoir  to  collect  water  for  their  59  Quackenbush  v.  Van  Riper,  2 
mill  during  the    dry    season,  and     Green  Ch.,  350. 


772  INJUNCTIONS.  [chap.  XIII. 

land.^^  So  the  question  of  relative  inconvenir'nce  to  the  parties 
may  be  considered  upon  an  application  to  enjoin  a  nuisance  to 
water.  And  when  plaintiff's  right  has  not  been  established  at 
law,  and  the  question  of  nuisance  is  not  clearly  eslablished, 
and  the  allowance  of  an  injunction  would  totally  suspend  de- 
fendant's works,  thereby  causing  the  greatest  injury,  the  court 
may   properly   refuse   to   interfere.*^^ 

§  809.  Questions  of  surface  water.  Questions  of  much 
nicety  have  occurred  touching  the  exercise  of  the  jurisdiction 
in  cases  involving  the  flowage  of  surface  water.  For  example, 
when  plaintiff  is  entitled  to  water  flowing  from  surface  springs 
on  defendant's  land  by  natural  channels  to  and  upon  the  land 
of  plaintiff*,  defendant  may  be  enjoined  from  diverting  the 
water  in  such  manner  as  to  prevent  its  flowing  in  its  natural 
course.*^-  And  where  a  city  has  under  contract  with  a  land 
owner  constructed  across  his  premises,  which  are  beyond  the 
city  limits,  a  ditch  for  drainage  purposes,  the  city  having  com- 
plied with  its  undertaking  in  good  faith,  it  may  enjoin  such 
land  owner  from  obstructing  the  ditch.'^'^  So  the  leading  of 
surface  water  from  one's  premises  upon  those  of  another, 
causing  overflow  and  injury  to  the  latter,  may  be  enjoined  as 
a  nuisance.*^^  Thus,  where  defendant,  by  digging  a  ditch  for 
that  purpose,  draws  oft'  surface  water  which  has  accumulated 
in  a  natural  pond  or  reservoir  upon  his  own  premises,  to  and 
upon  the  premises  of  plaintiff'  adjoining,  the  injury  being  con- 
tinuous in  its  nature  afl'ords  sufficient  ground  for  relief  by 
injunction.^^     And  the  owner  of  real  property  may  enjoin  a 

«"  Elmhirst  r.  Spencer,  2  Mac.  &  c-*  pettigrewr.  Bvansville,  25  Wis., 

G.,  45;   Kensit  r.  Great  Eastern  R.  223;   Foot  r.  Bronson,  4  Lans.,  47; 

Co.,  23  Ch.  D.,  566,  affirmed  on  ap-  Davis  r.  Londgreen,  8  Neb.,  43.  See 

peal,  27  Ch.  D.,  122.  also  Pence  v.  Garrison,  93  Ind.,  345. 

<!i  Elmhirst  r.  Spencer,  2  Mac.  &  *'•'<  Davis    /•.   Londgreen,     8    Neb., 

G.,  45.  43;   Jacobson  v.  Boening,  48  Neb., 

62Ennor  v.  Barwell,  2  Gif.,  410.  80,  66  N.  W.,  993,  32  L.  R.  A.,  229, 

0^  City  of  Coldwatcr  /■.  Tucker,  36  58    Am.    St.    Rep.,    684.      See   also 

Mich.,  474.  Pence  v.  Garrison,  93  Ind.,  345. 


CHAP.  XIII.]  AGAINST  NUISANCE.  773 

municipal  corporation  from  draining  oft'  through  an  artificial 
channel  a  pond  or  reservoir  adjoining  his  premises  in  such 
manner  as  to  overflow  them,  and  to  cause  permanent  injury .^^ 
So  a  mandatory  injunction  has  been  allowed  to  compel  defend- 
ants to  fill  up  a  ditch  which  they  had  lowered,  thereby  leading 
surface  water  upon  plaintiff's  grounds,  and  to  restrain  them 
from  again  lowering  the  ditch.^^  But  while  relief  by  injunc- 
tion is  thus  freely  granted  in  cases  where  the  injury  is  con- 
tinuous in  its  nature,  and  is  not  susceptible  of  adequate  com- 
pensation in  damages,  the  leading  of  surface  water  upon  an- 
other's land  will  not  be  enjoined  when  the  pecuniary  injury 
thereby  sustained  is  definitely  ascertained  by  witnesses,  since 
in  such  case  adequate  relief  may  be  had  by  an  action  for  dam- 
ages.''^ Nor  can  the  owner  of  a  lot  abutting  upon  a  street 
enjoin  the"  city  from  constructing  drains  or  culverts  in  the 
street  which  may  increase  the  flow  of  surface  water  upon  his 
land.^9  Nor  will  highway  commissioners  be  enjoined  from  con- 
structing a  road  in  such  manner  as  to  throw  the  water  upon 
plaintiff's  land  adjoining  the  road,  when  it  is  not  shown  that 
full  damages  were  not  awarded  to  plaintiff  by  the  commis- 
sionerSj  and  wdien  their  proceedings,  if  erroneous,  might  have 
been  corrected  by  appeal.'''^  And  in  this  class  of  cases  the 
relief  will  not  be  granted  to  one  who  shows  no  legal  or  equit- 
able title  to  the  premises  in  question,  but  only  a  naked  pos- 
session.'^i 

§  810.  Pollution  of  streams  by  sewag-e.  Frequent  ground  of 
application  for  the  preventive  aid  of  equity  by  injunction  is 
found  in  cases  of  the  pollution  of  water  by  the  flow  of  sewage 
from  towms  or  cities  into  streams  whose  waters  are  thereby 
injured  or  rendered  unfit  for  use.    In  cases  of  this  nature,  the 

66  Pettigrew    v.    Evansville,      25  63  Wis.,  228,  23  N.  W.,  495. 
Wis.,  223.  70  state  v.  Hanna,  97  Ind.,  469. 

67  Foot  r.  Bronson,  4  Lans.,  47.  7i  Denner  r.  Chicago,  M.  &  St.  P. 

68  Laney   v.  Jasper,  39   111.,  46.  R.  Co.,  57  Wis.,  218,  15  N.  W.,  158. 

69  Heth  V.  City  of  Fond  du  Lac, 


774  INJUNCTIONS.  [chap.  XIII. 

preventive  jurisdiction  of  equity  is  well  established,  the  gen- 
eral doctrine  being  that  the  fouling  or  pollution  of  water  in  a 
stream  by  such  sewage  constitutes  a  nuisance  and  affords  suf- 
ficient ground  for  relief  by  injunction.'^-  In  conformity  with 
this  doctrine,  the  owners  of  land  upon  the  banks  of  a  river 
below  a  city  may  enjoin  the  city  authorities  from  polluting  the 
river  by  sewage.'^^  So  the  owner  of  a  mill  pond  who  uses  the 
waters  thereof  for  manufacturing  purposes  may  enjoin  the 
pollution  of  such  waters  by  the  discharge  by  a  city  of  its 
sewage  into  the  pond.'^^  And  when  a  public  or  municipal  body, 
acting  in  excess  of  its  lawful  powers,  is  about  to  construct  a 
sewer  in  such  manner  as  to  injure  the  water  in  a  river,  it  may 
be  restrained  from  proceeding."^^  So  an  injunction  is  proper 
to  restrain  municipal  authorities  from  opening  additional 
sewers  into  a  stream  at  a  point  above  plaintiff's  premises  in 
such  manner  that  the  sewage  fouls  the  water  and  renders  it 
unfit  for  use.''^''  And  a  board  of  commissioners  charged  with 
the  drainage  of  a  town  may  be  enjoined  from  permitting  the 

72  Attorney-General       v.     Colney  of  Danbury,  67  Conn.,  484,  35  Atl., 
Hatch    Lunatic    Asylum,    L.  R.  4  499 ;  Winchell  v.  City  of  Waukesha, 
Ch.,      146;       Attorney-General      v.  110   Wis.,    101,    85   N.   W.,    668,    84 
Leeds   Corporation,   L.   R.    5    Ch.,  Am.   St.   Rep.,   902;    Carmichael  r. 
583;   Holt  v.  Corporation  of  Roch-  City   of   Texarkana,   94   Fed.,   561. 
dale,  L.  R.  10  Eq.,  354;   Attorney-  And  see  Attorney-General  r.  Rich- 
General  V.   Bradford   Canal,   L.  R.  mond,  L.   R.,  2  Eq.,  306. 
2    Eq.,     71;     Attorney-General      v.  ts  Attorney-General  t'.  Leeds  Cor- 
Council  of  Birmingham,   4   Kay  &  poration,  L.  R.  5  Ch.,  583. 
J.,  528;    Oldaker  r.  Hunt,  6  DeGex,  •*  Middlesex  Co.  v.  City  o^  Low- 
M.   &   G.,   376,   affirming   S.    C,   19  ell,  149  Mass.,  509,  21  N.  E.,  872. 
Beav.,  485;   Goldsmid  v.  Tunbridge  f^  oidaker  r.  Hunt,  6  DeGex,  M. 
Wells     Improvement    Commission-  &  G.,  376,  affirming  S.  C,  19  Beav., 
ers,    L.    R.    1     Ch.,    349,    affirming  485. 

S.  C,  L.  R.  1  Eq.,  161;    Lingwood  ""Attorney-General  v.  Council  of 

V.  Stowmarket  Co.,  L.  R.  1  Eq.,  77;  Birmingham,  4  Kay  &  J.,  528.  And 

Village  of  Dwight  v.  Hayes,  150  111.,  in   this   case   the  court   incline    to 

273,  37  N.  E.,  218,  41  Am.  St.  Rep.,  consider  only  the  right  of  plaintiff 

367;    City   of   Kewanee    v.    Otley,  to  relief,  rather  than  the  question 

204  111.,  402,  68  N.  E.,  388;  Peterson  of  inconvenience  to  defendants,  al- 

V.   City   of    Santa    Rosa,   119   Cal.,  though   defendants   represented    a 

387,  51   Pac,  557;    Morgan  r.   City  large  population. 


ClIAl'.  Xill.  I  AGAINST  NUISAXCE.  775 

sewage  of  the  town  to  be  discharged  into  a  stream  which  passes 
through  plaintiff's  premises  and  supplies  a  lake  thereon,  when 
such  sewage  has  an  injurious  effect  upon  the  water  in  the 
stream  and  lakeJ^  So  the  owner  of  premises  watered  by  a 
stream  used  for  domestic  purposes  may  enjoin  a  city  from  pol- 
luting the  stream  by  the  discharge  of  sewage  to  such  an  extent 
as  to   constitute   a  nuisance. '^^ 

§  811.  The  same.  Where,  however,  the  nuisance  complained 
of  consists  in  the  draining  of  sewage  whereby  plaintiffs,  as 
they  allege,  fear  that  the  water  in  the  springs  and  wells  upon 
their  premises  will  be  contaminated,  but  the  injury  is  only 
problematical  and  theoretical,  the  answer  distinctly  denying 
the  allegations  of  the  bill,  a  preliminary  injunction  will  be 
dissolved.'^'^  And  where  the  injury  resulting  from  the  pollu- 
tion of  water  by  sewage  from  a  city  is  not  at  all  imminent  and 
will  result,  if  at  all,  only  in  the  future,  upon  the  possible  ex- 
tension of  the  sewage  system,  relief  by  injunction  will  be  de- 
nied.^^  So  an  injunction  will  not  be  allowed  to  restrain  a  city 
from  discharging  its  sewage  into  a  stream,  to  the  alleged  in- 
jury of  a  city  located  lower  down,  which  relies  upon  the 
stream  as  its  sole  source  of  water  supply,  where  the  fact  of  the 
nuisance  is  not  made  out  by  clear  and  satisfactory  evidence, 
the  testimony  being  conflicting  and  there  being  no  showing 
that  the  injury  is  real  and  immediate.^^  And  when  the  injury 
sustained  is  not  serious  and  is  no  greater  than  it  has  been  for 

T7  Goldsmid  v.  Tunbridge    Wells  sewage,  see  Blackburne  v.  Somers, 

Improvement     Commissioners,     L.  5  L.  R.  Ir.  1. 

R.   1   Ch.,  349,    affirming  S.   C,  L.  ^s  Chapman  v.  City  of  Rochester, 

R.  1  Eq.,  161.     And  see,  as  to  the  110  N.  Y.,  273,  18  N.  E.,  88. 

violation  of  such  an  injunction  and  ^^  Lytton  i'.  Steward,  2  Tenn.  Ch., 

the  punishment  therefor,  Spokes  v.  586. 

Banbury  Board  of  Health,  L.  R.  1  so  City  of  Hutchinson  v.  Delano. 

Eq.,  42.    As  to  the  right  of  a  ripar-  46  Kan.,  345,  26  Pac,  740. 

ian  owner  to  enjoin  the  pollution  of  si  Newark     Aqueduct     Board     v. 

a  stream  by  an  owner  above,  and  City  of  Passaic,  45  N.  J.  Eq.,  393, 

as   to  the   right  of   defendant,    by  18  Atl.,  106,  affirmed  46  N.  J.  Eq., 

prescription,  to  foul  the  stream  by  552,  20  Atl.,  54,  22  Atl.,  55. 


776  INJUNCTIONS.  [chap.  XIII. 

many  years  past,  and  vAien  it  will  soon  be  in  course  of  abate- 
ment by  an  act  of  parliament  soon  to  take  effect,  an  injunction 
will  be  refused.^2  And  where  a  stream  flowing  through  a  city 
affords  the  only  possible  means  of  drainage  for  the  city,  with- 
out which  no  system  of  drainage  could  be  adopted,  a  lower 
riparian  owner  Avho  is  injured  thereby  can  not  enjoin  the 
municipality  from  polluting  the  water  of  the  stream  by  dis- 
charging sewage  into  it.^^  So  when  defendants,  a  municipal 
body  charged  with  the  drainage  of  a  given  locality,  have  not 
themselves  committed  any  act  contributing  to  the  nuisance  in 
question,  and  have  only  permitted  the  system  of  sewage  to  be 
continued  in  like  manner  as  before  their  appointment,  an 
injunction  may  be  refused.^^  Even  in  cases  where  the  injunc- 
tion is  allowed  it  is  proper  to  insert  in  the  writ  the  words  "to 
the  injury''  of  plaintiff,  since  he  must  sustain  injury  or  dam- 
age to  entitle  him  to   the  relief.*^^ 

§  812.  Navigable  rivers ;  erection  of  wharves ;  obstructions. 
A  navigable  river  being  a  public  highway,  to  be  used  by  all 
citizens  for  reasonable  purposes  and  in  a  reasonable  manner, 
a  riparian  owner  upon  such  river  may  be  protected  by  injunc- 
tion against  any  obstruction  or  interference  with  the  right  of 
access  by  his  vessel  to  a  wharf,  for  the  purpose  of  loading  and 
unloading.^*'  And  where  plaintiff  is  the  owner  and  in  posses- 
sion of  a  private  wharf  in  front  of  his  premises  upon  a  navig- 
able water,  he  is  entitled  to  enjoin  the  erection  of  another 
wharf  in  such  manner  as  to  deprive  him  of  access  to  the  water» 
unless  defendants  can  show  a  legal  right  derived  from  com- 
petent authority  to  proceed  with  their  work.     And  when,  in 

82  Attorney-General  r.  Gee,  L.  R.  torney-General     r.     Guardians     of 

10  Eq.,  131.  Poor,   20   Ch.    D.,   595. 

S3  City   of   Valparaiso   r.   Hagen,  s^  Lingwood   v.   Stowmarket  Co., 

153  Ind.,  337,  54  N.  E.,  1062,  48  L.  L.  R.  1  Eq.,  77. 

R.  A.,  707,  74  Am.  St.  Rep.,  305.  ^'''  Original   Hartlepool   Collieries 

s »  Glos.sop  V.  Heston  &  Isleworth  Co.   r.   Gibbs,   5   Ch.    D.,    713.     See 

Local   Board,   12   Ch.   D.,   102;    At-  Turner   r.   People's   Ferry  Co.,    22 

Blatch.,  272;    S.   C,   21   Fed.,  90. 


CHAP.  Xlll.]  AGAl^^ST  NUISANCE.  777 

such  a  case,  defendants  rely  upon  a  contract  with  a  board  of 
public  officers  authorizing  the  erection  of  their  proposed  wharf, 
a  compliance  with  the  law  by  such  officers  in  letting  the  con- 
tract must  be  shown;  and  unless  the  statute  has  been  substan- 
tially complied  with  the  contract  will  be  held  void  and  an 
injunction  will  be  granted.^'^     So  the  owner  of  lands  fronting 
upon  a  navigable  river,  who  is  entitled  under  the  laws  of  the 
state  to  erect  wharves  upon  the  water  frontage  may  enjoin  the 
erection  of  obstructions  to  such  wharves.^^    And  the  erection 
by  defendant  of  piers  in  the  bed  of  a  stream  running  through 
his  land,  in  such  manner  as  to  obstruct  the  natural  flow  of 
the  water  and  cause  it  to  set  back  upon  lands  belonging  to 
plaintiffs    farther    up    the    stream,    may    be    enjoined    as    a 
nuisance.®'^     But  the  erection  of  a  wharf  in  tide  waters  is  not 
of  itself  such  a  nuisance  as  to  warrant  an  injunction  when  the 
navigation  is  not  injured  by  such  erection.     And  when  land 
owners  upon  a  navigable  water  seek  to  restrain  the  erection 
of  a  wharf,  an  interlocutory  injunction  will  be  denied  wdien  it 
is  doubtful  upon  the  evidence  whether  the  proposed  wharf 
would  be  a  nuisance,  and  when  no  great  or  irreparable  injurj^ 
to  plaintiffs  is  likely  to  result  therefrom.^*^     So  a  ivessel  owner 
upon  a  navigable  river  can  not  enjoin  a  railway  company  from 
constructing  its  road  along  and  in  front  of  docks  and  wharves 
upon  the  bank  of  the  river,  when  the  company  is  proceeding 
under  legislative  authority.^!    Nor  can  a  wharf  owner  restrain 
an  adjacent  owner  from  depositing  earth  and  other  matter  in 
the  vicinity  of  a  w^harf,  when  the  injury  may  be  readily  com- 
pensated in   damages.^2 

8T  Cowell  V.  Martin,  43  Cal.,  605.     tion    of   the   water-front   adjoining 

88  Parker  v.  Taylor,  7  Ore.,  435.       plaintiff's  premises,  they  might    be 

89  Gillespie   r.  Forrest,  18    Hun,    entilted  to  an  injunction. 

110.  91  Ormerod  r.   New  York,  W.   S. 

90  Thornton  r.  Grant,  10  R.  I.,  477.     &  B.  R.  Co.,   21  Blatch..   106. 

But  it  would  seem  from  the  opin-         92  Hawley  v.  Beardsley,  47  Conn., 
ion  of   the   court  that  if  the   pro-     571. 
posed  wharf  would   occupy  a  por- 


778  INJUNCTIONS,  [chap.  X1I[. 

§  813.  Riparian  owners  allowed  relief.  Riparian  owners 
upon  a  navigable  river,  who  would  sustain  a  special  and  pecu- 
liar injury  to  their  property  by  the  threatened  act  of  defend- 
ant in  filling  in  the  river  adjacent  to  their  premises,  may  have 
the  aid  of  an  injunction  to  prevent  the  commission  of  the 
threatened  act,  the  damages  which  plaintiffs  would  sustain 
being  peculiar  to  themselves  and  different  both  in  degree  and 
in  kind  from  those  sustained  by  the  public/^^ 

§  814.  Logs  and  booms ;  obstruction  by  railway.  It  is  also 
held  that  riparian  owners  upon  a  navigable  river,  who  are 
lawfully  in  possession  of  piers  and  booms  which  they  have 
erected  for  the  purpose  of  handling  logs  floating  down  the 
river,  may  enjoin  such  an  obstruction  of  the  river  below  as 
will  interfere  with  the  beneficial  use  of  their  property  above ; 
although  they  will  not  be  allowed  to  enjoin  absolutely  other 
riparian  proprietors  from  erecting  any  boom  whatever  upon 
the  river.^'*  And  the  construction  and  operation  by  defendant 
of  a  boom  for  the  collection  of  logs  in  a  river,  whereby  the 
logs  are  driven  and  forced  upon  plaintiff's  land,  injuring  his 
land,  trees  and  herbage,  and  preventing  him  from  having  free 
and  uninterrupted  access  to  the  river,  will  justify  a  court  of 
equity  in  extending  relief  by  injunction.^^  But  where  it  was 
sought  to  enjoin  a  railway  company  from  obstructing  a  stream 
to  the  injury  of  a  town,  it  was  held  that,  whether  the  town 
did  or  did  not  receive  such  special  injury  from  the  obstructions 
in  question  as  to  entitle  it  to  an  injunction,  the  relief  should 
be  refused  until  the  question  of  whether  the  acts  of  the  com- 
pany were  within  its  charter  could  be  determined  at  law.^^ 

§  815.  Regatta  upon  lake ;  pollution  of  fish  ponds.  The 
owner  of  a  mansion  house  with  a  park  and  an  estate  adjacent 

»•■'  Musser  v.   Hershey,    42    Iowa,  o*  Stevens    Point     Boom     Co.     v. 

356.     As  to  the  right  of  a  riparian  Reilly,  44  Wis.,  295. 

owner  to  enjoin   the    construction  os  Cotton  r.  Missisippi  &  H.  R.  B. 

of  a  wharf  and  the  depositing  of  Co.,  19  Minn.,  497. 

material    in    the  navigable  waters  '•'«  Sheboygan  /•.  Sheboygan  &  F. 

of  a  bay  or  harbor,  see  Sullivan  v.  R.   Co.,   21   Wis.,   675. 
Moreno,  19   Fla.,   200. 


I 


CHAP.  XIII.]  AGAINST  NUISANCE.  779 

to  a  lake,  having  certain  exclusive  rights  of  fishing  in  the  lake 
has  been  allov^ed  an  injunction  to  restrain  the  holding  of  re- 
gattas thereon,  upon  the  ground  of  nuisance,  after  a  verdict 
at  law  establishing  his  legal  title.'*^  And  where  plaintiff  has 
constructed  and  maintained  artificial  ponds  upon  his  premises 
for  the  breeding  and  propagation  of  trout,  and  defendants 
dig  a  ditch  from  the  rear  of  their  dwelling  house  to  the 
stream  supplying  the  trout-ponds  with  water,  for  the  purpose 
of  carrying  off  the  refuse  water  and  drainage  from  defend- 
ant's house,  thereby  fouling  the  stream  and  destroying  the 
trout,  an  injunction  will  lie  to  restrain  defendants  from 
using  the  ditch  thus  constructed.^^  And  in  general  the  de- 
struction of  fish  by  the  pollution  of  the  waters  of  lakes  and 
ponds  will  be  enjoined  as  a  public  nuisance  in  a  suit  brought 
by  the  proper  public  authorities.  And  the  relief  is  properly 
granted  in  such  cases  although  the  right  of  fishery  may  be 
in  the  private  riparian  owner.^'* 

§  815  a.  Raising  or  lowering  of  lake  level.  The  owner  of 
land  bordering  upon  a  pond,  lake  or  other  natural  body  of 
water  is  entitled  to  an  injunction  against  a  defendant,  such  as 
a  mill  owner  located  at  the  outlet  of  the  body  of  water,  who, 
by  the  employment  of  artificial  means,  is  raising  or  lowering 
the  water  of  the  pond  above  or  below  its  natural  level,  to  the 
injury  of  the  plaintiff  who  is  specially  damaged  thereby.^ 

97  Bostock  V.  North  Staffordshire        i  Potter  v.  Howe,  141  Mass.,  357, 
R.  Co.,  5  DeGex  &  Sm.,  584.  6    N.    E.,    233,    2   New   Eng.    Rep., 

98  Seaman  v.  Lee,  10  Hun,  607.  167;    Fernald  v.  Knox  W.   Co.,  82 

99  People  V.  Truckee  L.  Co.,  116  Me.,   48,    19   All.,   93,   7   L.   R.   A., 
Cal.,  397,  48  Pac,  374,  39  L.  R.  A.,  459. 

581,  58  Am.  St.  Rep.,  183. 


780  INJUNCTIONS.  [chap.  XIII. 


V.  Streets  and  Highways. 

§  816.  General  doctrine  as  to  obstructions. 

817.  Limitations   upon  the  doctrine. 

818.  Closing  up  of  street;  lease  of  street;  joinder  of  plaintiffs. 

819.  Diversion  of  public  highway  by   railroad. 

820.  Approach  to  bridge. 

821.  Abandonment   of   highway;    acquiescence   in   obstruction. 

822.  Taking  up  pavements. 

823.  Existence   of   legal   remedy   a   bar   to  relief. 

824.  Projection    in    building. 

825.  Discharge  of  sewage  as  between  municipal  corporations. 
825a.  Erection  of  telegraph  and  telephone  lines. 

825&.  Bridging  of  highway. 

825c'.  City  market  place  in  highway. 

§  816.  General  doctrine  as  to  obstructions.  The  rem- 
edy by  injunction  is  tlie  most  efficient  means  of  prevent- 
ing, obstructions  to  public  highways,  and  where  the  facts 
are  easy  of  ascertainment  and  tlie  rights  resulting  there- 
from are  free  from  doubt,  the  relief  will  be  granted  at  the 
suit  of  a  citizen  having  an  immediate  and  special  interest  in 
the  matter.^  And  the  rule  may  be  asserted  generally  that  the 
owner  of  property  abutting  upon  a  public  highway  is  entitled 
to  the  aid  of  equity  to  restrain  any  unlawful  or  unauthorized 
obstruction  of  the  street  in  front  of  his  premises,  whereby  he 
suffers  special  injury,  ditYerent  from  that  sustained  by  the 
T;>ublic,  the  right  to  the  relief  being  founded  upon  the  general 
inadequacy  of  the  remedy  at  law.-    And  a  mandatory  injune- 

1  Green  v.  Oakes,  17  111.,  249;  236,  93  Am.  St.  Rep.,  133;  Louis- 
Craig  v.  The  People,  47  111.,  487.  ville  &  N.  R.  Co.  v.  M.,  J.  &  K.  C. 

2  Wilder  v.  De  Cou.  26  Minn.,  10,  R.  Co.,  124  Ala.,  162,  26  So.,  895; 
1  N.  W.,  48;  Gustafson  v  Hamm,  Whaley  i\  Wilson,  112  Ala.,  627,  20 
56  Minn.,  334,  57  N.  W.,  1054,  22  So.,  922;  Richi  r.  Chattanooga 
L.  H.  A.,  565;  Glaessner  v.  A.-B.  B.  Brewing  Co.,  105  Tenn.,  651,  58  S. 
Assn.,  100  Mo.,  508,  13  S.  W.,  707;  W.,  646;  Hart  v.  Buckner,  5  C.  C. 
Canton  Cotton  W.  Co.  v.  Potts,  .-9  A.,  1,  54  Fed..  925;  Schewde  v. 
Miss.,  31,  10  So.,  448;  Thompson  Heinrich  Bros.,  29  Wash.,  21,  6& 
V.  Maloney,  199  111.,  276,  65  N.  E.,  Pac,  362;   Gardner  v.  Stroever,  89 


CHAP.  XIII.]  AGAINST  NUISANCE.  781 

tion  is  the  proper  and,  indeed,  tlie  usual  form  of  relief  granted 
in  sucli  cases.^  Upon  similar  grounds  the  owner  of  a  farm 
abutting  upon  a  highway  is  entitled  to  an  injunction  to  pre- 
vent the  obstruction  of  the  highway  and  to  maintain  it  in  its 
original  condition.^  So  a  farm  owner  who  suffers  a  special 
injury  not  common  to  the  general  public  may  have  an  injunc- 
tion to  compel  the  removal  of  an  obstruction  to  the  highway 
which  materially  impairs  his  right  of  ingress  and  egress,  al- 
though he  is  not  entirely  deprived  of  access  to  his  land.^  So 
the  obstruction  of  a  highway  which  forms  the  only  means  of 
access  to  plaintiff' 's  premises  upon  which  he  has  erected  ex- 
pensive buildings  for  manufacturing  purposes  may  be  en- 
joined.^ So  the  erection  of  a  fence  across  a  traveled  highway 
or  the  unlawful  excavation  of  a  ditch  may  be  enjoined  by  the 
town  authorities,  the  liability  of  the  town  for  damages  for  in- 
juries sustained  by  such  obstruction  constituting  a  sufficient 
interest  in  the  subject-matter  to  render  the  town  a  proper 
plaintiff'  in  such  case.'^  So  a  city,  village  or  other  municipality, 
having  control  of  the  highways  within  its  limits,  may,  enjoin 
the  unlawful  obstruction  of  such  highways,  the  remedy  by 
mandatory  injunction  being  regarded  as  more  simple  and 
effective  than  the  remedy  at  law.^    And  when  the  erection  of  a 

Cal.,   26,     26     Pac,   618.     But  see  Neshkoro  v.  Nest,  85  Wis.,  126,  55 

Packet  Co.  v.  Sorrels,  50  Ark.,  468,  N.  W.,.  176. 

8   S.   W.,  683.     And  in  such  cases  *  De  Witt  v.  Van  Schoyk,  110  N. 

it  is  immaterial  whether  the  fee  to  Y.,   7,   17   N.   E.,   425;    McQuigg  v. 

the  street  is  in  the  municipality  or  Cullins,    56    Ohio    St.,    649,    47    N. 

in  the  abutter.     Schewde  v.  Hein-  E.,  595. 

rich  Bros.,  29  Wash.,  21,  69  Pac,  s  Martin  v.  Marks,  154  Ind.,  549, 

362.  57  N.  E.,  249. 

3  Martin  v.  Marks,  154  Ind.,  549,  6  Ross  r.  Thompson,  78  Ind.,  90. 

57  N.  E.,  249;  Gardner  v.  Stroever,  7  Town  of  Burlington  v.  Schwarz- 

89   Cal.,   26,   26   Pas.,  618;    City  of  man,  52  Conn.,  181;   Hygeia  M.  S. 

Oshkosh  V.  M.  &.  L.  W.  R.  Co.,  74  Co.   v.   Village   of    Waukesha,    83 

Wis.,   534,   43  N.  W.,   489,   17  Am.  Wis.,  475,  53  N.  W.,  675. 

St.  Rep.,  175;   City  of  Eau  Claire  s  City  of  Oshkosh  v.  M.  &  L.  W. 

V.  Matzke,  86  Wis.,  291,  56  N.  W.,  R.  Co.,  74  Wis.,  534,  43  N.  W.,  489. 

874,  39  Am.  St.  Rep.,  900;  Town  of  17   Am.   St.   Rep.,   175;     Town    of 


782  INJUNCTIONS.  [CIIAI'.  XIH. 

toll-gate  in  a  highway  will  operate  as  a  public  nuisance,  it 
may  be  restrained  at  the  suit  of  an  adjoinging  property  owner 
who  sustains  a  special  injury.-*  And  the  obstruction  of .  a 
street,  by  erecting  a  house  or  other  building  thereon,  is  a 
public  nuisance  which  may  be  restrained  in  a  suit  brought  by 
the  attorney-general  upon  behalf  of  the  public,^  "^  or  by  ad- 
jacent lot  owners  who  suffer  a  special  injury  from  the  ob- 
struction.il  So  equity  will  interfere  to  prevent  the  unauthor- 
ized raising  of  the  level  of  a  street  which  will  result  in  de- 
priving plaintiff,  an  abutting  ov/ner,  of  his  right  of  ingress 
and  egress.i2  So  a  property  owner  may  enjoin  the  mainten- 
ance of  trolley  poles  in  the  highway  in  front  of  his  premises 
where  it  is  alleged  that  they  are  so  placed  not  because  of  any 
necessity  therefor  but  for  the  purpose  of  annoying  plaintiff 
and  injuring  his  property.!^  And  a  railroad  company  which 
has  acquired  by  condemnation  land  bordering  upon  a  public 
highway  may  enjoin  an  unauthorized  obstruction  of  the  high- 
way.!^ And  the  unreasonable  obstruction  of  a  public  street 
by  backing  vans  up  to  the  curb  in  front  of  defendant's  store 
for  the  purpose  of  loading  and  unloading,  thereby  impeding 
free  passage  along  the  highway  has  been  held  to  be  a  public 
nuisance  which  may  be  enjoined  in  an  action  instituted  by  the 
attorney-general.i^     And  a  property  owner  who  suffers  special 

Neshkoro  v.  Nest,  85  Wis.,  126,  55  n  Corning  v.  Lowerre,  6  Johns. 

N.  W.,  176;    City  of  Eau  Claire  r.  Ch.,  439;  Pennsylvania  S.  V.  R.  Co. 

Matzke,    86    Wis.,    291,    56    N.    W.,  v.  Reading  Paper  Mills,  149  Pa.  St., 

874,  39  Am.   St.  Rep.,  900;    Metro-  18,  24  Atl.,  205. 

politan  City  R.  Co.  v.  City  of  Chi-  12  Schaufele  r.  Doyle,  86  Cal.,  107, 

cago,  96  111.,  620;  Chicago,  B.  &  Q.  24  Pac,  834. 

R.  Co.  V.  City  of  Quincy,  136  111.,  "  Snyder  v.   Street  R.   Co.,    105 

489,  27  N.  E.,  232;    City  of  Demo-  Iowa,  284,  75  N.  W.,  179,  41  L.  R. 

polls  V.  Webb,  87  Ala.,  659,  6  So.,  A.,  345. 

408;   Reed  v.  Mayor,  92  Ala.,  339,  14  Pennsylvania  S.   V.  R.  Co.  v. 

9  So.,  161.    And  see,  post,  §  1555.  Reading  Paper  Mills,  149  Pa.   St., 

»  Snell  r.  Buresh,  123  111.,  151.  18,  24  Atl.,  205. 

10  Attorney-General      r.      County  i-"- Attorney-General   v.    Brighton 

Council  of  Mayo,    (1902)    1   L.   R.  &  H.  C.  S.  Assn.,  (1900)  1  Ch.,  276. 
Jr.,  13. 


CHAP.  XIII.]  AGAINST  XUISAXCE.  783 

damage  may  enjoin  the  unlawful  obstruction  of  the  street  in 
front  of  his  premises  by  the  assembling  in  large  and  dis- 
orderly crowds  of  former  employees  who  have  gone  on  a 
strike.i^  And  where  public  officers  are  proceeding  under  claim 
of  right  to  open  a  private  way  across  the  works  of  a  railway 
company,  equity  may  interfere  by  injunction,  although  the 
persons  injured  might  await  the  completion  of  the  road  and 
then  recover  damages  for  injuries  sustained,  where  the  public 
officers  having  charge  of  the  road  are  proceeding  illegally 
and  improperly,  and  where  the  interference  is  necessary  to 
prevent  a  multiplicity  of  suits.i'^ 

§  817.  Limitations  upon  the  doctrine.  It  is  to  be  observed, 
however,  that  the  rule  requiring  complainants  to  show  a 
special  injury  peculiar  to  themselves  and  distinct  from  the 
general  inconvenience  experienced  by  the  public  is  inflexible.^  ^ 
"Where,  therefore,  they  fail  to  show  such  injury,  and  own  no 
property  fronting  upon  the  street,  the  relief  will  be  withheld, 
even  though  they  be  residents  and  taxpayers.!^  And  the  fact 
of  one's  traveling  the  road  frequently  and  being  greatly  incon- 
venienced by  its  obstruction  will  not  authorize  the  injunction 
in  the  absence  of  any  special  injury. 2"  So  the  obstruction  of 
a  highway  by  the  erection  of  a  toll-gate,  and  demanding  and 
receiving  toll  from  persons  crossing  a  bridge  in  the  highway, 
although  a  public  nuisance,  will  not  be  enjoined  when  plain- 
tiffs show  no  special  damage  or  injury  to  themselves,  distinct 
from  that  sustained  by  the  public. -^     Moreover  proof  of  special 

16  American  Steel  &  Wire  Co.  v.  is  McCowan    v.     Whitesides,     31 
Wire  Drawers'  Union,  90  Fed.,  608.  Ind.,  235;  Davis  r.  Mayor,  4  Kern., 

17  Mohawk  &   H.   R.   Co.  v.   Art-  506;    Dawson  v.   St.   Paul  F.  &  M. 
Cher,   6   Paige,   83.  Ins.  Co.,  15   Minn.,  136. 

18  Corning  v.   Lowerre,  6   Johns.  20  McCowan     v.     Whitesides,     31 
Ch.,    439;    Shed    v.    Hawthorne,     3  Ind.,  235. 

Neb.,  179 ;    Wellborn  v.   Davies,  40         21  Shed    v.   Hawthorne,     3     Neb., 
Ark.,  83;  Perkins  v.  M.  &  C.  T.  Co.,     179:  Perkins  v.  M.  &  C.  T.  Co.,  48 
48  N.  J.  Eq.,  499,  22  Atl.,  180;  Gut-     N.   J.   Eq.,   499,  22   Atl.,  180. 
tery  v.  Glenn,  201  111.,  275,  66  N.  E., 
305. 


784  INJUNCTIONS.  [chap,  XIII, 

injury  to  complainants  will  not,  of  itself,  suffice  to  warrant 
an  injunction,  and  the  court  will  require,  as  in  the  case  of  tres- 
pass, that  irreparable  damage  be  shown,  and  where  this  does 
not  appear  the  relief  will  be  withheld,  even  though  the  persons 
aggrieved  show  a  special  and  personal  injury,^-  Nor  will"  the 
injunction  issue  when  the  right  to  the  use  of  the  highway  or 
street  has  not  been  established  at  law  and  is  denied  and  in- 
volved in  great  doubt.-^  So,  too,  the  court  will  refuse  to  inter- 
fere where  the  obstruction  is  not  necessarily  a  nuisance  per  se 
but  something  which  may  or  may  not  be,  according  to  cir- 
cumstances. In  such  case  an  injunction  will  not  be  allowed 
until  the  matter  has  been  determined  by  a  jury.-^  And  a 
supervisor  of  highways,  as  such,  can  have  no  injunction  to 
restrain  obstructions  to  a  highway.-^ 

§  818.  Closing  up  of  street;  lease  of  street;  joinder  of  plain- 
tiffs. An  injunction  is  the  appropriate  remedy  to  prevent  the 
unauthorized  obstruction  or  closing  up  of  a  public  street,  at 
the  suit  of  adjacent  lot  owners  who  have  sustained  such  a 
special  injury  as  to  make  them  proper  parties  plaintiff.  And 
it  is  a  sufficient  averment  of  the  injury  to  allege  that  such 
obstruction  will  greatly  depreciate  the  value  of  their  lots  and 
buildings,  and  will  greatly  increase  the  liability  of  their 
buildings  to  fire,  and  otherwise  seriously  injure  their  prop- 
erty. And  it  is  held  to  be  competent,  in  such  a  case,  for 
several  different  lot  owners  adjoining  the  street,  although 
holding  their  titles  in  severalty,  to  join  in  the  bill  for  in- 
junction.-«  And  the  obstruction  of  a  sidewalk  in  front  of 
defendant's  store,  by  loading  and  unloading  goods  to  such 
an  extent  as  to  interfere  seriously  with  and  obstruct  passen- 

22  Fort  V.   Groves,   29   Md.,   188;  24  Dunning  r.  Aurora,  40  111.,  481; 

Zabriskie  v.  Jersey  &  B.  R.  Co.,  2  Lake  View  v.  Letz,  44  111.,  81. 

Beas.,   314;    Sargent  v.  George,  56  25  putnam  v.  Valentine,  5  Ohio, 

Vt,  627;   Chicago  Gen.  Ry.  Co.  v.  187. 

C,  B.  &  Q.  R.  Co.,  181  111.,  605,  54  20  Pettibone     v.     Hamilton,     40 

N.   E.,   1026.  Wis.,  402.     See  also  Town  of  Sul- 

2.''.  Walts  V.  Foster,  12  Ore.,  247,  7  livan  v.  Phillips,  110  Ind.,  320,  11 

Pac,  24,  N,  E.,  300.     And  see,  ante,  §  757. 


■CHAP.  XIII.]  AGAINST  NUISANCE.  785 

gers  upon  the  walk,  may  be  restrained  at  the  suit  of  one  occu- 
pying premises  in  the  immedate  vicinity  and  who  suffers  a 
special  injury  by  such  obstruction.^^  So  the  leasing  of  a  por- 
tion of  a  public  highway  for  purely  private  purposes,  as  to 
vendors  of  produce,  may  be  enjoined  as  a  nuisance  at  the 
suit  of  an  adjacent  property  owner  who  suffers  special 
damage  because  of  the  interference  with  his  right  of  ingress 
and  egress.2^  So  property  owners,  whose  lots  abut  upon 
a  public  street,  may  restrain  private  citizens,  acting  without 
authority,  from  altering  the  grade  of  a  street  in  such  manner 
as  to  render  plaintift"s  improvements  less  secure  and  more 
difficult  of  access.29  But  owners  of  lots  which  abut  upon 
the  street  at  points  distant  from  the  obstruction  in  question 
can  not  have  relief  by  injunction,  since  they  sustain  no 
special  injury  different  from  that  to  the  pubiic.^*^  And  in 
such  case  the  fact  that  the  j)laintiff  is  compelled  to  resort 
to  a  more  circuitous  and  roundabout  route  to  reach  por- 
tions of  the  city  does  not  constitute  special  injury  within 
the  meaning  of  the  rule.^^  And  where  a  portion  of  a  high- 
w^ay  other  than  that  upon  which  plaintiff'  abuts  has  been 
vacated  and  has  reverted  to  defendants  as  abutting  owners, 
plaintiff'  can  not  enjoin  them  from  obstructing  their  portion  of 
the  highway  where  he  has  reasonable,  though  less  convenient, 
access  to  his  property  by  other  streets,  since,  in  such  case, 
the  injury  which  he  suft'ers,  though  greater  in  degree,  is  not 
different  in  kind  from  that  suffered  by  the  public  generally.^^ 

27  Callanan  v.  Gilman,  107  N.  Y.,  Chicago  v.  Union  Building  Asso- 
360,   14   N.   E.,   264.  ciation,     102   111.,     379;      Dodge  v. 

28  Schopp  V.  City  of  St.  Louis,  Pennsylvania  R.  Co.,  43  N.  J.  Eq., 
117  Mo.,  131,  22  S:  W.,  898,  20  L.  351,  11  Atl.,  751.  And  see,  ante, 
R.  A.,  783.  §§  594,  757. 

29  Price  V.  Knott,  8  Ore.,  438.  si  Guttery  v.  Glenn,  201  111.,  275, 
30Billard  v.  Erhart,  35  Kan..  611,     66  N.   E.,  305;    City  of  Chicago  r. 

12  Pac,  39;   Barnum  r.  Minnesota  Union    Building    Association,     102 

T.  R.  Co.,  33  Minn.,  365,  23  N.  W.,  111.,  379. 

538;  Guttery  v.  Glenn,  201  111.,  275,  32  Kinnear  Mfg.  Co.  v.  Beatty,  65 

66    N.    E.,    305.      See   also    City   of  Ohio  St.,  264,  62  N.  E.,  341. 
50 


786  INJUNCTIONS.  [chap.  XIII. 

§  819.     Diversion    of    public    highway    by    railroad.      The 

unnecessary  diversion  of  a  public  highway  by  a  railway  com- 
pany in  the  construction  of  its  road  may  be  enjoined  as  a 
nuisance,  although  the  railway  company  is  by  its  charter  em- 
powered to  change  the  location  of  any  public  road  if  neces- 
sary. A  power  thus  conferred  is  not  to  be  exercised  merely 
because  the  company  find  it  convenient  or  desirable  to  make 
such  diversion,  but  there  must  be  an  actual  necessity  for 
its  exercise.  And  in  such  case,  the  authorities  of  the 
municipality,  having  by  law  control  of  the  streets  and  pub- 
lic places  within  its  limits,  and  being  liable  for  their  preser- 
vation and  repair,  have  such  a  special  interest  beyond  that 
of  the  public  at  large  in  the  subject-matter,  as  to  render 
them  proper  parties  to  invoke  the  aid  of  the  court.^^  And 
where  a  railroad  company,  in  constructing  its  line  in  a 
public  highway,  has  made  an  embankment  and  has  otherwise 
unnecessarily  obstructed  the  street,  the  municipality  is  en- 
titled to  a  mandatory  injunction  to  compel  the  company  to 
restore  the  highway  to  its  former  condition  of  usefulness  as 
a  condition  to  using  it  for  the  purpose  of  its  road.^^ 

§  820.  Approach  to  bridge.  When  the  right  of  the  public 
to  the  use  of  a  highway  is  clear  and  a  special  injury  to  plain- 
tiff is  threatened  by  its  obstruction,  such  injury  going  to  the 
substance  and  value  of  plaintiff's  estate  and  being  of  a 
permanent  character,  equity  may  properly  enjoin.  Thus, 
where  plaintiff  is  the  proprietor  of  a  toll-bridge,  the  approach 
to  which  is  by  a  public  highway,  the  obstruction  of  which 
must  necessarily  result  in  serious  injury  to  the  value  of 
plaintiff's  property  as  a  toll-bridge,  the  injury  being  peculiar 
and  not  to  be  compensated  adequately  by  an  action  at  law, 
and  being  permanent  in  its  nature,  a  proper  case  is  presented 

33  Easton  &  A.  R.  Co.  v.  Inhabi-  34  city  of  Oshkosh  v.  M.  &  L.  W. 

tants  of  Greenwich,  10  C.  E.  Green,  R.    Co.,    74    Wis.,    534,    43    N.    W., 

565,  affirming  S.  C,  9  C.  E.  Green,  489    17  Am.  St.  Rep.,  175. 
217. 


CHAP.  XIII.]  AGAINST  NUISANCE.  787 

for  relief  by  injimction.^^  And  the  obstruction  of  a  public 
road  leading  to  plaintiff's  ferry  may  be  enjoined  as  a  nui- 
sancers go  a  nuisance  to  a  public  highway  by  cutting  away 
the  timbers  supporting  a  roadway  or  approach  to  a  bridge 
affords  sufficient  ground  for  the  interposition  of  equity  by 
injunction."^'''  But  a  city  can  not  maintain  a  bill  to  restrain 
prison  convicts  from  working  upon  the  streets  upon  the 
alleged  ground  that  such  work  is  a  violation  of  a  city  oriji- 
nance  and  injurious  to  the  public  peace  and  good  order.^^ 

§  821.  Abandonment  of  highway ;  acquiescence  in  obstruc- 
tion. Although  the  jurisdiction  of  equity  in  restraint  of 
obstructions  to  roads  and  highways,  by  injunction  in  behalf 
of  the  people,  is  well  established,  it  will  not  be  exercised 
where  the  highway  has  been  for  a  long  period  abandoned 
and  disused,  and  where  it  does  not  appear  that  the  public 
will  suffer  any  inconvenience,  or  that  public  travel  will  be 
prevented  or  seriously  incommoded;  and  this  is  especially 
true  when  the  attorney-general  and  the  relator  in  the  in- 
formation, with  full  knowledge  of  the  facts,  have  permitted 
the  work  to  proceed  to  partial  completion  without  objec- 
tion.39 

§822.  Taking  up  pavements.  The  taking  up  of  pave- 
ments in  a  city  for  the  purpose  of  laying  gas  pipes  is  not 
regarded  as  such  a  nuisance  as  to  warrant  relief  by  injunc- 
tion, the  inconvenience  to  the  public  being  only  temporary 
in  its  duration.'**'  And  this  is  true,  even  though  the  act  in 
question  is  bein^  done  by  an  unincorporated  gas  company."*^ 

35  Keystone  Bridge  Company  v.  ^o  Attorney-General  v.  Sheffield 
Summers,  13  West  Va.,  476.  Gas   Consumers   Co.,   3    DeGex,   M. 

36  Draper  y.  Mackey,  35  Ark.,  497.  &    G.,     304;      Attorney-General      c. 

37  Attorney-General  v.  Forbes,  2  Cambridge  Consumers  Gas  Co.,  L.. 
Myl.   &  Cr.,   123.  R.  4  Ch.,  71,  reversing  S.  C,  L.  R. 

38  Ward  V.  City  of  Little  Rock,  41  6  Eq.,  282. 

Ark.,  526.  4i  Attorney-General  v.  Cambridge 

39  Attorney-General  v.  Brown,  9  Consumers  Gas  Co..  L.  R.  4  Ch.,  71, 
C.  E.  Green,  89.  reversing  S.  C,  L.  R.  6  Eq.,  282. 


788  INJUNCTIONS.  [chap.  XIII. 

§  823.  Existence  of  legal  remedy  a  bar  to  relief.  The 
€xistence  of  a  legal  remedy  for  the  prevention  or  re- 
moval of  an  obstruction  to  a  highway,  is  a  material 
circumstance  to  be  considered  in  cases  of  the  character 
under  discussion.  And  upon  an  information  filed  by  the 
attorney-general  of  a  state  at  the  relation  of  the  surveyors  of 
highways  of  a  town,  seeking  to  restrain  a  manufacturing 
corporation  from  obstructing  a  public  highway  by  laying 
and  operating  thereon  a  private  railway  track,  it  was  held 
that  no  such  obstruction  to  the  rights  of  the  public  was  dis- 
'Closed  as  to  justify  the  extraordinary  remedy  of  an  injunc- 
tion, the  surveyors  of  highways  being  empowered  by  law 
to  prevent  or  remove  such  obstruction.'*^ 

§  824.  Projection  in  building.  To  warrant  the  exercise 
•of  the  extraordinary  judisdiction  of  equity  in  cases  of  ob- 
structions to  streets,  some  real  and  substantial  injury  must 
be  shown  as  the  result  of  the  act  which  it  is  sought  to 
■enjoin.  Equity  will  not,  therefore,  enjoin  an  encroachment 
upon  a  public  highway  or  street  hy  a  projection  in  a  build- 
ing erected  by  defendants  when  no  substantial  injury  is 
shown,  and  no  real  obstruction  to  the  use  of  the  street.^^ 
And  a  city  may  be  enjoined  from  destroying  a  structure 
encroaching  upon  a  street,  Avhen  such  structure  is  not  a 
nuisance  per  se,  and  when  the  question  of  nuisance  has 
never  been  determined.^^  But  plaintiffs,  who  have  purchased 
lots  upon  a  street  relying  upon  the  grantor's  representations 
that  the  street  would  be  extended  as  shown  by  a  plat  submit- 
ted, may  enjoin  a  defendant  claiming  under  the  same  grantor 
from  obstructing  the  proposed  extension  by  the  erection  of 
a  building.-*^ 

42  Attorney-General  r.  Bay  State  **  Everett  r.  Marquette,  53  Mich  , 
Brick  Co.,  115  Mass.,  431.  450,  19  N.  W.,  140. 

43  City  of  Philadelphia's  Appeal,  4.-,  Karrer  r.  Berry,  44  Mich.,  391, 
78   Pa.   St.,   33;    Gray   v.   Baynarrt,  6  N.  W.,  853. 

5  Del.  Ch.,  499. 


CHAP.  XIII.]  AGAINST  NUISANCE.  789 

§  825.  Discharge  of  sewage  as  between  municipal  corpo- 
fations.  A  municipal  corporation  may  be  enjoined  from 
discliarging  its  sewage  into  the  sewers  of  another  munici- 
pality, such  an  injury  being  regarded  as  of  so  irreparable  a 
nature  as  to  warrant  preventive  relief  in  equity.  It  is 
proper,  however,  in  such  a  case,  to  order  that  no  steps  be 
taken  to  enforce  the  injunction  for  a  sufficient  period  ta 
enable  defendants  to  construct  suitable  works  to  discharge- 
their  sewage  otherwise  than  into  the  sewers  of  plaintiffs.^^ 
And  property  owners  in  a  city,  who  are  entitled  to  the  use: 
of  an  underground  drain  to  carry  off  the  sewage  from  their 
premises,  may  enjoin  the  destruction  of  such  drain."*" 

§  825  a.  Erection  of  telegraph  and  telephone  lines.  The 
construction  of  a  line  of  telegraph  poles  and  wires  in 
front  of  plaintiff's  premises  in  a  city,  when  author- 
ized by  law,  does  not  constitute  a  private  nuisance  of  so. 
irreparable  a  nature  as  to  warrant  relief  by  injunction."*^ 
So  an  injunction  has  been  refused  at  the  suit  of  a  lot 
owner  seeking  to  restrain  a  telephone  company  from 
stretching  its  wires  in  a  street  in  front  of  plaintiff's  prem- 
ises, the  question  of  plaintiff' 's  right  being  doubtful  and  de- 
fendant claiming  to  act  under  legal  authority.^'-^  Where,, 
however,  a  telephone  company,  without  authority  anda 
against  the  remonstrance  of  plaintiff",  enters  upon  his  prem- 
ises and  erects  its  poles  thereon,  it  may  be  restrained,  and 
the  injunction  may  be  granted  in  the  mandatory  form  to 
compel  the  removal  of  the  poles.^*^ 

§  825  h.  Bridging  of  highway.  Since  a  city  or  other 
municipality  ordinarily  has  no  power  to  grant  the  use  of  its; 

46  Commissioners  of  Kingstown  *'■>  Roake  i\  American  T.  Co.,  41 
V.  Blackrock  Commissioners,  L.  R.  N.  J.  Bq.,  35,  2  Atl.,  618.  See  also 
10  Eq.,  160.  New  York  &  N.  J.  T.  Co.  v.  East 

47  Masonic  Temple  Association  Orange,  42  N.  J.  Eq.,  490,  8  All., 
V.  Harris,  79  Me.,  250,  9  Atl.,  737.  289. 

48  Hewett  ('.  Western  Union  T.  '"  Broome  r.  New  York  &  N.  J. 
Co.,  4  Mackey,  424.  And  see,  ante,  T.  Co.,  42  N.  J.  Eq.,  141,  7  Atl.,  851. 
§  597  /. 


790  INJUNCTIONS.  [chap.  xiii. 

streets  for  purely  private  purposes,  the  construction,  under 
an  ordinance,  of  a  bridge  over  a  public  highway  connect- 
ing buildings  located  upon  opposite  sides  constitutes  a 
public  nuisance,  which  may  be  abated  by  injunction  in  an 
action  brought  by  adjoining  or  neighboring  property  owners 
who  suffer  a  special  and  peculiar  injury  therefrom.^^ 

§  825  c.  City  market  place  in  highway.  The  maintenance  by 
a  city  of  a  public  market  place  upon  a  public  highway  ad- 
joining plaintiff' 's  premises,  resulting  in  noise  and  dirt  and  in 
foul  and  disagreeable  odors,  and  causing  great  discomfort  to 
the  plaintiff,  may  be  enjoined  as  a  nuisance  by  one  who  is 
specially  damaged  thereby.^^ 

51  Field  V.  Barling,  149  111.,  556,     49   Atl.,   629,   52   L.   R.  A.,  409,   86 
37   N.    E.,   850,    24   L.    R.   A.,   406;     Am.  St.  Rep.,  441. 
Townsend  v.  Epstein,  93  Md.,  537,        52  city  of  Richmond    v.    Smith, 

148   Ind.,   294,  47  N.   E.,   630. 


CHAP.  XIII.]  AGAINST  NUISANCE.  791 


VI.  Railways. 

§  826.     Construction  of  railway  through  city. 

827.  Plaintiff  must  show   special   injury. 

828.  Construction  of  railway  in  city  not  a  nuisance  per  se;   when 

relief  granted. 

829.  Street  railways;  electric  street  railway. 

830.  Injunction  conditioned  on  condemnation  proceedings. 

831.  Opening  street  through  railway  embankment. 

832.  Construction  of  road  for  individual  benefit. 

§  826.  Construction  of  railway  throug^h  city.  The  interest 
in  and  use  of  public  streets  being  publici  juris,  their 
appropriation  to  private  or  corporate  use  in  the  construc- 
tion of  a  railway,  without  authority  of  law,  and  the  ob- 
struction thus  caused  to  travel,  constitute  a  public  nui- 
sance, which  may  be  enjoined  in  behalf  of  the  people.^  A  city, 
however,  in  its  corporate  capacity,  has  not  such  a  proprietary 
interest  or  right  in  the  streets  and  public  squares  over 
which  a  railway  is  built  as  to  entitle  it  to  an  injunction  re- 
straining the  erection  of  the  road.^  And  the  construction 
of  a  railroad  through  a  city  by  authority  of  the  common 
council,  will  not  be  enjoined  as  a  nuisance  to  adjacent  prop- 
erty owners,  the  right  of  passage  not  being  obstructed  to 
the  public  for  other  purposes.-^ 

§  827.  Plaintiff  must  show  special  injury.  We  have 
already  seen  that  to  warrant  relief  in  equity  by  a  private 
citizen  against  a  public  nuisance,  some  special  injury  must 
be  shown  aside  from  the  general  inconvenience  to  the  pub- 
lic.^ In  other  words,  damage  sustained  in  common  by  all 
the  persons  of  a  large  class  furnishes  no  foundation  for 
relief  on  the  part  of  an  individual  of  that  class.     The  rule 

1  People  V.  New  York  &  H.  R.  Co.,        2  Milwaukee  v.   Milwaukee  &   B. 
45   Barb.,   73;    Attorney-General  v.     R.  Co.,  7  Wis.,  85. 
Greenville   &   H.   R.    Co.,   59   N.  J.         3  Drake  r.  Hudson  River  R.  Co., 
Eq.,   372,    46   Atl.,    638.  7  Barb.,  508. 

4  §  762,  ante. 


792  INJUXCTIOXS.  [chap.  XIII. 

applies  with  equal  force  in  the  case  of  railways,  and  the 
construction  of  a  street  railway  will  not  be  enjoined  at  the 
suit  of  an  adjacent  lot  owner,  who  simply  owns  up  to  the 
line  of  the  street,  and  over  whose  land  the  road  does  not 
pass,  where  no  special  damage  is  shown  to  the  complainant 
different  from  that  to  all  the  property  owners.^  So  when 
plaintiff  seeks  to  enjoin  a  railway  company  from  obstruct- 
ing a  street  in  a  city,  but  his  lands  do  not  abut  upon  that 
part  of  the  street  where  the  alleged  obstruction  exists,  he 
will  not  be  allowed  relief;  since  the  injury  or  nuisance,  if 
any,  is  to  the  public  at  large,  and  plaintiff'  suffering  no  injury 
different  in  kind  from  that  sustained  by  the  public  is  not 
entitled  to  an  injunction.^ 

§  828.  Construction  of  railway  in  city  not  a  nuisance  per 
se;  when  relief  granted.  With  regard  to  the  interference  of 
equity  in  restraint  of  the  construction  and  operation  of 
railroads,  it  is  to  be  noticed  in  the  first  place  that  the  con- 
struction of  such  roads  and  the  running  of  cars  through  the 
streets  of  a  city  or  village  do  not,  per  se,  constitute  such  a 
nuisance  as  will  be  enjoined  in  the  absence  of  proof  that 
the  railroad  is  a  nuisance  in  fact.'''  Nor  will  a  general 
averment  that  the  road  is  a  flagrant  nuisance  suffice  in  the  ab- 
sence of  facts  proving  it  to  be  such.^  And  the  fact  that  the 
change  in  the  mode  of  travel  thus  introduced  in  the  street  or 
thoroughfare  may  have  had  an  injurious  effect  upon  business 
or  rents  in  such  thoroughfare  affords  no  ground  for  relief.'*  And 
where  a  railroad  is  authorized  by  the  terms  of  its  charter  to 
construct  its  road  in  a  particular  manner,  or  through  a  par- 

s  Osborne  v.  Brooklyn,  5  Blatch.,  Long  Island  R.  Co.,  13  Barb.,  646; 

366.  Bell  V.  Ohio  &  P.  R.  Co.,  25  Pa.  St., 

0  Shaubut  v.  St.  Paul  &  S.  C.  R.  161. 

Co.,    21    Minn.,    .502;    Gundlach    r.  n  Hentz  /;.  Long  Island  R.  Co.,  IS 

Hamm,     62     Minn.,   42,    64    N.   W.,  Barb.,   646. 

50.     And  see,  a7ite,  §   757.  '•'  Lexington   &   O.   R.   Co.   v.  Ap- 

T  Lexington   &  0.   R.   Co.   r.   Ap-  plegate,  8  Dana,  289. 
plegate,   8   Dana,     289;     Hentz     v. 


CHAP.  XIII.]  AGAINST  NUISANCE.  795 

ticular  street,  such  construction,  being  authorized  by  law 
is  not  a  nuisance  and  will  not  be  enjoined.^'^  Nor  does  the 
mere  use  of  railway  tracks  across  an  alley  in  the  rear  of 
plaintiff's  premises  constitute  such  an  injury  as  to  warrant 
relief  by  injunction  against  the  use  of  such  tracks."  Even 
where  the  road  is  being  built  without  authority  of  law,  it 
will  not  be  enjoined  at  the  suit  of  one  who  owns  no  real 
estate  over  or  adjoining  which  it  is  to  pass,  and  who  will 
not  be  specially  injured  by  its  construction. i-  But  where 
the  plaintiff'  owns  real  estate  abutting  upon  a  public  street 
or  alley  and  will  be  subjected  to  a  special  injury  differing 
in  kind  from  that  suffered  by  the  public,  such  as  the  impair- 
ment of  his  easement  in  the  highway  as  a  means  of  ingress 
and  egress  to  his  property,  resulting  in  serious  and  sub- 
stantial injury  thereto,  the  rule  is  well  settled  that  an  injunc- 
tion will  lie  to  restrain  the  illegal  and  unauthorized  con- 
struction of  a  railroad  in  the  highway,  as,  for  example,  where 
the  work  is  proceeding  under  an  ordinance  or  license  which 
the  municipality  has  no  power  to  grant.^^     And  the  fact  that 

10  Currier  v.  West  R.  Co.,  6  Co.,  142  Mo.,  172,  43  S.  W.,  629, 
Blatch.,  487;  McFarland  v.  Orange  64  Am.  St.  Rep.,  551;  Corby  v. 
&  N.  H.  C.  R.  Co.,  2  Beas.,  17.  C,  R.  I.  &  P.  R.  Co.,  150  Mo.,  457, 

11  Baltimore  &  0.  R.  Co.  v.  52  S.  W.,  282.  In  the  first  of  these 
Strauss,   37   Md.,   237.  cases  the  city  had   no   power,  un- 

1-  Currier  v.  West  R.  Co.,  6  der  its  charter,  to  grant  to  a  rail- 
Blatch.,  487;  Davis  v.  Mayor,  4  road  the  right  to  operate  in  a  pub- 
Kern.,  506.  lie    highway.      In     the     Gustafson, 

13  Louisville  &  N.  R,  Co.  v.  M.,  Glaessner  and  Richi  cases  the  or- 
J.  &  K.  C.  R.  Co.,  124  Ala.,  162,  26  dinances  were  void  because  they 
So.,  895;  Gustafson  t\  Hamm,  56  attempted  to  give  the  right  to  con- 
Minn.,  334,  57  N.  W.,  1054,  22  L.  R.  struct  a  railroad  in  the  streets  for 
A.,  565;  Glaessner  t;.  A.-B.  B.  Assn.,  purely  private  purposes.  In  the 
100  Mo.,  508,  13  S.  W.,  707;  Richi  other  cases  the  invalidity  arose 
r.  Chattanooga  Brewing  Company,  from  the  fact  that  they  attempted 
105  Tenn.,  651,  58  S.  W.  646;  to  grant  the  exclusive  right  to  the 
Knapp,  Stout  &  Co.  v.  St.  L.  T.  R.  use  of  the  highway.  For  a  further 
Co.,  126  Mo.,  26,  28  S.  W.,  627;  discussion  of  the  subject  of  in- 
Schulenburg  &  B.  L.  Co.  v.  St.  L.,  junctions  against  rairoads  in  pub- 
K.  &  N.  R.  Co.,  129  Mo.,  455,  31  S.  lie  highways,  see  ante,  §  589. 
W..   796;    Sherlock    v.   K.   C.   B.  R. 


794  INJUNCTIONS.  [chap.  XIll. 

the  plaintiff  is  also  operating  a  railroad  in  the  highway  under 
such  an  invalid  ordinance  will  not  justify  the  defendant  in 
imposing  such  additional  nuisance.^  ^ 

§  829.  Street  railways ;  electric  street  railway.  It  is  also 
held  that  the  construction  of  a  street  railway  through 
the  streets  of  a  city,  if  the  road  is  properly  laid  and 
operated,  is  not,  per  se,  a  public  nuisance,  since  it  is 
not  an  obstruction  to  the  ordinary  use  of  a  street.^ ^  The 
construction,  however,  of  a  street  railway  through  the 
streets  of  a  city  without  authority  of  law  has  been  treated 
as  a  nuisance.  But  when  such  construction  is  sought  to  be 
enjoined  by  another  railway  company,  the  relief  will  not 
be  allowed  except  in  so  far  as  the  plaintiff  company  shows 
that  it  sustains  a  special  and  peculiar  injury,  and  the  relief 
will  be  denied  as  to  any  injury  which  it  sustains  in  com- 
mon with  the  general  public.  To  the  extent,  therefore, 
that  it  is  attempted  without  authority  of  law  to  construct 
a  street  railway  which  will  interfere  with  plaintiff' 's  line  of 
road  in  actual  operation  or  in  course  of  construction,  de- 
fendant may  be  enjoined,  but  no  further.!^  And  a  city 
which,  under  its  charter,  has  control  over  the  streets  and 
highways  within  its  limits,  may  enjoin  the  unauthorized 
laying  of  the  tracks  of  a  street  railway  company  in  its  high- 
ways, as,  for  example,  where  the  work  is  proceeding  under 
an  ordinance  which  is  invalid  for  want  of  the  necessary 
publication  required  by  law.^"^  And  an  abutting  owner  who 
suffers  a  special  injury  may  restrain  the  tearing  up  of  the 
highway  adjacent  to  his  premises  for  the  purpose  of  con- 
structing an  electric  street  railway,  upon  the  ground  that 
the  ordinance  under  which  the  work  is  being  done  is  illegal.^** 

1*  Louisville  &  N.   R.   Co.  v.   M.,  Denver  City  R.  Co.,  2  Col.,  673. 
J.   &   K.   C.    R.    Co.,    124   Ala.,    162,         it  Metropolitan  City  R.  Co.  v.  Cily 

26   So.,   895.  of  Chicago,  96   111.,  620. 

15  Coast    Line    R.    Co.    r.    Cohen,         is  Hart  v.  Buckner,  5  C.  C.  A.,  1, 

50  Ga.,  4.51.  54    Fed.,   925.       Upon   the   general 

10  Denver   &   Swansea   R.   Co.   v.  subject  of  injunctions  against  elec- 


CHAP.  XIII.]  AGAINST  NUISANCE.  795 

§  830.  Injunction  conditioned  on  condemnation  proceed- 
ings. Where  the  facts  as  found  by  the  court  upon  the 
hearing  show  that  the  operation  of  defendant's  railroad  in 
front  of  plaintiff's  premises  is  in  fact  a  nuisance,  and  de- 
fendant has  made  no  compensation  to  plaintiff  for  the 
damages  sustained,  and  has  taken  no  proceedings  for  that 
purpose,  it  is  proper  to  grant  an  injunction  conditionally 
against  the  operation  of  the  road,  the  injunction  to  issue  if 
defendant  does  not  forthwith  institute  and  promptly  carry 
forward  proceedings  for  condemnation.^^ 

§  831.  Opening  street  through  railway  embankment.  When 
the  corporate  authorities  of  a  city  are  proceeding  to  open  a 
street  through  the  embankment  of  a  railway  upon  the  ground 
that  it  constitutes  a  nuisance  by  obstructing  the  street,  and 
the  railway  company,  relying  upon  twenty  years'  possession, 
enjoins  the  municipal  authorities  from  proceeding,  the  right 
of  the  city  being  doubtful,  it  is  not  error  to  continue  the 
injunction  until  a  hearing  upon  the  merits.  The  question 
being  properly  triable  by  a  jury,  a  court  of  equity  will  not 
assume  its  functions  and  deside  the  issue  in  advance  of  a 
trial  at  law.^o 

§  832.  Construction  of  road  for  individual  benefit.  Where 
one  under  corrtract  with  a  railroad  company  which  has 
failed  to  construct  its  road  has  gone  on  with  the  con- 
struction of  a  portion  of  the  route  for  his  own  benefit, 
he  may  be  restrained  on  the  application  of  owners  of  land 
through  which  the  road  passes.  And  the  fact  that  com- 
plainants in  the  bill  in  equity  are  plaintiffs  in  an  action  at 
law  then  pending  against  other  parties,  to  recover  damages 
for  past  trespasses  thus  incurred,  affords  no  defense  to  the 
bill.2i 

trie    railways     in     highways,     see,         -"  Mayor  v.  Georgia  R.  &  B.  Co., 

ante.  §  589  b.  40  Ga.,  471. 

10  Harrington  r.  St.  Paul  &  S.  C.         '^i  Stewart   &   Foltz's   Appeal,   56 

R.  Co.,  17  Minn..  215.  Pa.   St..  413. 


796  INJUNCTIONS.  [chap.  XIII. 


VII.  Bridges. 

§  833.  Ereciion  cf  bridge,  when  enjoined;  jurisdiction  of  United  States 
courts. 

834.  Illustrations  of  the  relief. 

835.  When   injunction   refused. 

836.  Bridge  in  city,  question  of  plaintiff's  title. 

837.  Effect  of  acquiescence  in  construction. 

838.  Laying  tramway  over  bridge  enjoined. 

§833.  Erection  of  bridge,  when  enjoined;  jurisdiction  of 
United  States  courts.  The  erection  of  a  bridge  over  a  large 
navigable  river  in  such  manner  as  to  obstruct  seriously  the 
navigation  of  the  river  is  a  public  nuisance  which  will  be  en- 
joined in  the  courts  of  the  United  States,  even  though  the 
erection  be  authorized  by  the  legislature  of  a  state.^  And  in 
such  case  the  original  jurisdiction  of  the  Supreme  Court  of 
the  United  States  will  be  exercised  in  behalf  of  a  state  bor- 
dering on  a  river,  on  the  ground  that  the  state,  as  proprie- 
tor of  its  public  works,  suffers  a  special  injury  from  day  to 
day  by  the  erection  of  the  bridge,  which  injury  is  not  remedi- 
able at  law  and  not  susceptible  of  computation.^  So  the  erec- 
tion of  a  bridge  and  placing  obstructions  across  a  navigable 
river  in  such  manner  as  to  impede  its  free  use  and  naviga- 

1  Pennsylvania  v.  Wheeling  &  B.  thorized  by  act  of  Congress,  the  in- 
B.  Co.,  13  How.,  518;  Baird  t'.  Shore  junction  was  dissolved. 
Line  R.  Co.,  6  Blatch.,  276;  Hatch  -'Pennsylvania  r.  Wheeling  &  B. 
V.  Wallamet  L  B.  Co.,  7  Sawy.,  127;  B.  Co.,  13  How.  518,  Taney,  C.  J., 
S.  C,  6  Fed.,  326.  See  S.  C,  27  and  Daniel,  J.,  dissenting.  But 
Fed.,  673.  "But  see  Cardwell  v.  the  relief  has  been  denied  where 
American  Bridge  Co.,  113  U.  S.,  the  corporate  authorities  of  a  city 
205,  5  Sup.  Ct.  Rep.,  423.  In  Baird  sought  to  restrain  the  erection 
r.  Shore  Line  R.  Co.,  6  Blatch.,  of  an  aqueduct  causing  an  ob- 
276,  complainant  came  within  the  struction  to  a  navigable  river,  on 
rule  requiring  special  injury  to  be  the  ground  that  they  suffered  no 
shown,  he  having  vessels  engaged  special  injury  to  themselves  differ- 
in  the  navigation  of  the  river.  But  ent  from  the  general  injury  to  the 
the  erection  being    afterward    au-  public.   Georgetown  v.  Alexandria^. 

12  Pet.,  91. 


C;HAP.  XIII.]  AGAINST  NUISANCE.  797 

tion  may  be  enjoined  at  the  suit  of  a  riparian  owner.-^  But 
a  riparian  proprietor  will  not  be  allowed  to  restrain  the 
erection  of  a  bridge  by  authority  of  a  state  legislature, 
where  the  injury  which  he  would  sustain  would  be  conse- 
•quential-  only,  the  bridge  being  a  matter  of  great  public 
convenience,  a  similar  one  having  been  in  use  for  many 
years  over  the  stream  a  short  distance  above.'^  Nor  will  the 
jurisdiction  be  exercised  upon  a  mere  possibility  of  injury,^ 
nor  unless  the  proof  clearly  shows  that  the  bridge  would 
be  an  obstruction  to  the  navigation  of  the  river.^  And  the 
injunction  will  not  be  granted  when  complainant's  right  is 
doubtful  and  when  it  rests  upon  questions  which  are  un- 
settled, and  when  no  irreparable  injury  will  ensue  from  a 
refusal  to  enjoin,  since  an  important  public  work  should  not 
be  enjoined  unless  the  right  to  be  protected  is  clear  and 
without  serious  doubtJ 

§834.  Illustrations  of  the  relief.  Where  complainant's 
right  to  the  free  navigation  of  a  river  is  clear,  and  the 
€Ourt  is  in  doubt  whether  the  proposed  bridge  would  be  a 
material  obstruction  to  navigation,  a  temporary  injunction 
may  be  granted  to  prevent  the  great  expenditure  and  loss 
which  would  result  to  the  defendants  if  they  were  allowed 
to  go  on  and  erect  the  bridge  before  a  hearing,  and  were 
then  to  be  finally  enjoined.*     And  the  building  of  a  bridge 

3  Charleston  &  S.  Ry.    v.    John-  son  R.  B.  Co.,  4  Blatch.,  74,  infra. 

son,  73  Ga.,  306,  7  Pennsylvania    R.    Co.     r.     New 

■i  Gilman  v.  Philadelphia,  3  Wal.,  York  &  L.  B.  R.  Co.,  8  C.  E.  Green, 

'713;    the   case   distinguished   from  157. 

the  Wheeling  Bridge  case,  supra.  ^  Silliman  v.  Hudson  R.  B.  Co., 

5  Mohawk  Bridge  Co.  v.  Utica  &  4  Blatch.,  74.  This  case  on  final 
S.  R.  R.  Co.,  6  Paige,  554;  North-  hearing  is  reported  in  4  Blatch., 
ern  Pacific  R.  Co.  r.  Barnesville  &  395,  before  Nelson  and  Hall,  JJ., 
M.  R.  Co.,  2  McCrary,  224;  S.  C,  4  and  the  judges  being  divided  in 
Ped.,  172;  City  of  St.  Louis  v.  The  opinion  as  to  whether  the  injunc- 
Knapp,  Stout  &  Co.  Company,  2  tion  should  be  made  perpetual,  it 
McCrary,  516;  S.  C,  6  Fed.,  221.  was    so  certified    to    the    Supreme 

6  Hutchinson  r.  Thompson,  9  Court  of  the  United  States,  and 
Ohio,  52.  But  see  Silliman  v.  Hud-  upon    the    points    so  certified  the 


798  INJUNCTIONS.  [chap.  XIII. 

over  a  navigable  river,  without  authority  of  law,  in  such 
manner  as  to  entirely  obstruct  the  navigation  of  the  river, 
is  such  a  public  nuisance  as  to  warrant  relief  by  injunction. 
And  a  riparian  owner  who  suffers  a  special  injury  thereby  in 
the  use  of  a  warehouse  upon  his  premises,  which  is  used  in 
connection  with  the  navigation  of  the  river,  is  entitled  to 
restrain  the  building  of  such  bridge  without  a  draw  and  in 
such  manner  as  to  obstruct  navigation.^  So  the  construc- 
tion of  a  bridge  without  lawful  authority  over  a  stream  in 
the  line  of  a  publi*  highway,  in  such  manner  as  to  perma- 
nently interfere  with  and  deprive  plaintiffs  of  the  lawful 
use  and  enjoyment  of  their  mill  property  adjacent  thereto, 
is  such  a  nuisance  of  a  public  nature  as  to  justify  an  injunc- 
tion in  behalf  of  plaintiffs  who  show  themselves  to  be  pecu- 
liarly and  specially  injured  by  such  erection.^^ 

§  835.  When  injunction  refused.  When  a  bridge  over  a 
navigable  water  is  being  built  in  conformity  with  the  con- 
stitution and  laws  of  the  United  States,  and  the  state  in 
which  it  is  being  erected,  has  sanctioned  its  construction  in 
the  manner  provided  by  the  laws  of  the  United  States,  it 
will  not  be  regarded  as  a  public  nuisance,  nor  will  its  con- 
struction be  interfered  with  by  injunction.!^  Nor  will  an 
interlocutory  injunction  be  granted  to  restrain  the  building 
of  a  bridge  over  a  navigable  river  when  it  is  not  shown  that 
it    will    materially    obstruct    or    hinder    commerce    upon    the 

judges    of    that    court  were    also         »  Hickok   c.  Hine,    23    Ohio    St., 

equally  divided.     See  1  Black,  582.  523;    Hatch   v.    Wallamet    Iron    B. 

The  court  below  then  decreed  the  Co.,    7    Sawy.,   127;    S.    C,   6    Fed., 

dismissal  of  the  bills,  from  which  326.     See  S.  C,  27  Fed.,  673.     But 

decrees  appeals   were  had    to   the  see   Cardwell   r.   American   Bridge 

Supreme  Court  of  the  United  States  Co.,  113  U.  S.,  205,  5  Sup.  Ct.  Rep., 

and    upon   the  hearing  of   the   ap-  423. 

peals  the  judges  of  that  court  were         i"  Potter  r.  Village   of    Menasha, 

again  equally  divided.     See  2  Wal.,  30  Wis.,  492. 

403.     As  the  result  of  this  division         "  Miller    r.    Mayor,    13    Blatch., 

the    decrees    of    the    circuit    court  469. 
were  affirmed. 


CHAP.  XIII.]  AGAINST  NUISANCE.  791) 

river,  or  cause  injury  to  navigatian,  such  a  case  not  being 
one  of  an  interference  with  commerce  among  the  states  which 
will  justify  e(iuity  in  prohibiting  the  erection. ^- 

§  836.  Bridge  in  city,  question  of  plaintiff's  title.  Equity 
will  not  enjoin  the  construction  by  municipal  officers,  under 
legislative  authority,  of  a  bridge  over  a  branch  or  chan- 
nel of  tide  water  in  a  city,  upon  the  complaint  of  a  riparian 
owner  having  no  title  to  the  land  covered  by  the  water 
over  which  the  bridge  is  being  erected,  and  whose  only 
claim  of  right  to  the  water  is  the  general  right  or  ease- 
ment of  navigation  which  he  shares  in  common  with  the 
public.^  ^  But  where  plaintiffs  have  title  derived  from 
the  state  to  the  land  under  the  water  over  which  a  bridge 
is  to  be  erected,  they  may  enjoin  the  authorities  of  a 
city  from  erecting  such  bridge  without  having  made  com- 
pensation or  taken  the  necessary  proceedings  for  condemn- 
ing the    land.^^ 

§  837.  Effect  of  acquiescence  in  construction.  The  doc- 
trine of  acquiescence  as  a  bar  or  estoppel  to  equitable 
relief  is  applicable  to  the  class  of  cases  under  discussion,  as 
indeed  to  most  cases  in  which  the  extraordinary  aid  of 
equity  is  invoked.  And  where  the  defendant,  under  a 
franchise  granted  by  the  legislature,  has  been  engaged  in 
the  construction  of  a  bridge  for  more  than  a  year,  and 
until  the  work  is  almost  completed,  and  has  made  and  in- 
curred large  expenditures,  with  full  knowledge  upon  the 
part  of  the  persons  who  might  be  affected  by  such  bridge, 
such  acquiescence  and  delay  may  prevent  relief  by  injunc- 
tion til  limine.  And  while  as  against  the  public,  repre- 
sented by  the  attorney-general  seeking  to  enjoin  a  nuisance, 
a  stronger  case  of  delay  or  acquiescence  is  required  to  pre- 

12  Silliman  v.  Troy  Bridge  Co.,  ^^  Morris  Canal  &  B.  Co.  r.  May- 
11   Blatch.,  274.  or.  11  C.  E.  Green,  294. 

i-'  Sugar  Refining  Co.    v.    Mayor. 
11  C.  E.   Green,  247. 


800  IXJUXCTIOXS.  [CiIAP.  XIII. 

vent  relief  than  when  a  private  right  alone  is  in  dispute, 
the  doctrine  of  acquiescence  may  yet  be  applied  in  such  a 
case,  even  as  against  the  public.^^  So  when  an  alleged  pub- 
lic nuisance  which  it  is  sought  to  enjoin  consists  in  the  erec- 
tion by  a  railway  company  of  a  bridge  over  a  river,  and 
defendant,  acting  in  good  faith  and  under  a  belief  that  it 
has  sufficient  legislative  authority,  has  expended  a  large 
sum  of  money  in  its  enterprise,  and  has  been  permitted  to 
go  on  without  objection  for  nearly  a  year,  and  until  the 
work  has  almost  reached  completion,  an  injunction  will  be 
refused  even  upon  an  information  filed  in  behalf  of  the 
state,  and  the  state  will  be  left  to  seek  a  remedy  at  law.^^ 

§  838.  Laying  tramway  over  bridge  enjoined.  The  laying 
of  a  tramway  over  a  bridge  for  the  purpose  of  transporting 
coals  may  be  enjoined,  when  defendants,  in  an  action  at  law 
brought  against  them  for  damages,  have  entered  into  an 
undertaking  not  to  repeat  the  act  in  question.!^ 

13  Attorney-General  v.  New  York     &  B.  B.  R.  Co.,  12  C.  E.  Green,  1. 
&  L.  B.  R.  Co.,  9  C.  E.  Green,  49.  i"  North  Canal  Co.  v.  Ynisarwed 

16  Attorney-General   v.    Delaware    Co.,  L.  R.  10  Ch.,  450. 


CHAP.  XIII.]  AGAINST  NUISANCE.  801 


VIII.  Mill-Dams. 

§  839.     The  rule  stated  and  illustrated;   limitations  upon  the  doctrine. 

840.  Value  of  property  not  a  test;  right  need  not  be  established  by 

action  at  law. 

841.  Rebuilding  of   dam;    destruction   of   dam. 

842.  Dissolution;  allegation  should  be  specific;  verdicts  against  mill 

owner. 

843.  Erection  of  dam  prohibited  by  law. 

844.  The  general   doctrine   further   illustrated. 

845.  The  same. 

846.  Writ  for  removal  of  dam  not  enjoined. 

847.  Adverse  user  by  defendants;   laches  of  plaintiff. 
847a.  Injunction  until  payment  of  award. 

§  839.  The  rule  stated  and  illustrated;  limitations  upon  the 
doctrine.  The  erection  of  a  mill-dam  in  such  manner  that  the 
inundation  caused  by  the  back  flowage  of  the  water  lessens 
the  value  of  complainant's  land,  destroys  his  timber  and 
imperils  the  health  of  the  neighborhood,  will  be  enjoined.^ 
So  if  a  dam  is  erected  below  complainant's  land,  and  so 
near  that  the  back  flowage  covers  it  and  prevents  its  use, 
equity  will  interfere.-  So,  too,  the  threatened  destruction 
of  a  mill-dam  and  the  drawing  off  of  the  water  are  injuries 
over  which  equity  will  exercise  its  restraining  jurisdiction 
where  it  is  made  to  appear  that  irreparable  mischief  would 
otherwise  result.  And  it  is  to  be  observed  that  the  juris- 
diction is  exercised,  not  in  derogation  of  the  remedy  at  law, 

1  White  17.  Forbes,  Walk.  (Mich.),  edy   might  have  been  had   at   law 

112;   Whitfield  v.  Rogers,  26  Miss.,  as  for  a  nuisance,  the  court  hold- 

84.     And  see  Robinson  v.  Byron,  1  ing   that   under  a   general    statute 

Bro.  C.  C,  588;   Troe  v.  Larson,  84  authorizing    courts     of     equity     to 

Iowa,  649,  51  N.  W.,  179,  35  Am.  St.  hear   and    determine     any     matter 

Rep.,   336.  touching     waste     or     nuisance     in 

-  Miner  r.  Nichols,  24  R.  I.,  199,  which  there  was  not  a  plain  and 

52  Atl.,  893;    Bemis  v.  Upham,  13  adequate  remedy  at  law,  equity  was 

Pick.,   169;    Stone    v.    Roscommon  entitled  to  jurisdiction  in  the  case. 

Lumber   Co.,    59    Mich.,    24,    26    N.  the  legal  remedy  being  insuflScient. 

W.,    216.     And    this,    even   though  Bemis  v.  Upham,  13  Pick.,  169. 
under  a  statute  of  the  state  a  rem- 
51 


802  INJUNCTIONS.  [chap,  xiii.^ 

but  rather  because  the  legal  remedy  is  insufficient,  and  be- 
cause of  the  danger  of  irreparable  mischief  before  it  can  be 
applied.^  It  is  therefore  proper  to  retain  an  interlocutory 
injunction  restraining  the  threatened  erection  of  a  mill- 
dam,  until  the  determination  of  an  issue  to  be  tried  by  a  jury 
as  to  whether  the  erection  of  the  dam  will  probably  endan- 
ger the  health  of  the  neighborhood,  and  whether  plaintiff 
will  be  thereby  materially  injured  in  the  enjoyment  of  hi& 
property  and  in  the  health  of  himself  and  family."*  And  an 
injunction  will  lie  to  prevent  the  damming  up  of  a  bayou 
or  natural  outlet,  which  serves  as  a  drain  to  plaintiff's  land, 
the  result  of  which  would  greatly  injure  plaintiff  by  flood- 
ing his  land.^  So  the  maintenance  of  a  dam  which  results 
in  the  accumulation  of  decaying  vegetable  matter  which 
endangers  the  life  and  health  of  the  plaintiff  and  his  family 
will  be  enjoined.^  But  to  justify  relief  against  overflows 
resulting  from  dams,  it  must  appear  that  the  plaintiff'  suf- 
fers injury  as  the  result  of  the  dam  which  otherwise  he  would 
■  not  suffer.  Where,  therefore,  he  is  unable  to  show  that  lands 
of  his  are  submerged  in  consequence  of  the  nuisance  com- 
plained of,  which,  without  it,  would  not  be  submerged,  the 
relief  should  be  denied.'''  Nor  will  the  injunction  be  granted 
in  such  case  on  the  ground  that  the  water  accumulated  by  the 
dam  will  become  foul  and  stagnant,  thereby  endangering  the 
health  of  the  neighborhood,  where  such  injury  does  not  in 
fact    exist    and    is    merel}^    apprehended.^ 

§  840.  Value  of  property  not  a  test ;  right  need  not 
be  established  by  action  at  law.  Where  an  injunc- 
tion is  sought  to  prevent  interference  with  the  enjoy- 
ment of  property  by  the  erection  of  a  dam,  equity  will  not 

•■!  Winnlpiseogee     Lake     Co.      v.        o  Richards     v.     Daugherty,    133 

Worster,   29  N.  H.,  433,  and  cases  A.la.,  569,  31  So.,  934. 
cited.  "  Esson  v.  Wattier,  25  Ore.,  7,  34 

4  Ogletree  v.  McQuaggs,  67  Ala.,  Pac,  756. 
580.  ^ Id- 

^  Learned  v.  Hunt,  63  Miss.,  373. 


CHAP.  XIII.]  AGAIXST  NUISAXCE.  803 

be  governed  by  the  mere  value  of  the  property.^  Nor  will 
the  relief  be  denied  because  complainant's  title  has  not  been 
established  in  an  action  at  law,  since  the  modern  doctrine  of 
courts  of  equity  in  this  respect  is  much  more  liberal  than 
the  ancient,  and  the  rule  requiring  the  right  to  be  first 
established  at  law  prevails  only  in  cases  where  the  right  itself 
is  in  dispute  or  is  doubtful.^ *5  Therefore  a  bill  to  enjoin  the 
further  construction  and  maintenance  of  a  mill-dam  is  not 
demurrable  for  want  of  equity  in  that  it  contains  no  allega- 
tions of  complainant's  right  having  been  established  in  a 
suit  at  law.^^ 

§841.     Rebuilding    of    dam;    destruction    of    dam.      The 

rebuilding  of  a  dam  will  be  enjoined  where,  before  it  was 
swept  a^vay,  its  stagnant  waters  had  proved  so  injurious 
to  the  neighborhood  that  an  adjacent  owner  had  recovered 
damages  for  the  injury  sustained.^  2  And  a  municipal  cor- 
poration may  be  restrained  from  destroying  without  trial 
or  notice,  a  mill-dam  authorized  by  statute,  on  a  stream 
declared  to  be  a  public  highway,  on  the  ground  that  it  is  a 
nuisance.  The  injury  threatened  by  the  corporate  authorities 
being  permanent  to  the  freehold,  under  a  claim  of  right 
which  is  unfounded,  and  it  being  doubtful  whether  adequate 
compensation  can  be  made  in  damages,  an  injunction  is  the 
proper  remedy.^  ^ 

§  842.  Dissolution ;  allegation  should  be  specific ;  verdicts 
against  mill  owner.  A  temporary  injunction,  granted  ex 
parte  at  the  suit  of  the  owner  of  a  mill-dam,  to  restrain  a 

9  White  V.  Forbes,  Walk,  though  it  would  appear  to  be  con- 
(Mich.),  112.  tray    to    the    weight    of   authority, 

10  Sprague  v.  Rhodes,  4  R.  I.,  that  such  a  bill  is  not  demurrable 
301;  White  v.  Forbes,  Walk,  in  failing  to  state  a  case  of  irre- 
(Mich.),  112.     And  see,    ante,    §§     parable  mischief. 

698,  740.  12  Miller    v.     Truehart,  4   Leigh. 

11  Sprague  v.  Rhodes,  4  R.  I,,  569.  See  also  De  Vaughn  v.  Minor, 
301;    Switzer  v.  McCulloch,  76  Va.,     77  Ga.,  809,  1  S.  E.,  433. 

777.     And     it     is     also     held     in        13  Clark  v.  Mayor,  13  Barb.,  32. 
Sprague  v.  Rhodes,  4  R.  I.,  301,  al- 


804  INJUNCTIONS.  [chap.  XIII. 

town  from  opening  certain  sluice-ways  in  the  dam,  will  be  dis- 
solved when  it  appears  that  its  dissolution  will  not  result  in 
any  loss  to  complainant  which  can  not  be  repaired  in  dam- 
ages, or  that  the  dissolution  will  not  affect  the  cause  in  a 
trial  on  the  merits.^^  And  a  mere  general  and  indefinite  sug- 
gestion of  irreparable  mischief  is  not  sufficient  to  warrant  the 
interposition  of  equity,  but  there  must  be  an  allegation  of 
some  distinct  and  sufficient  ground  of  such  mischief.^^  And 
the  fact  of  two  verdicts  having  been  recovered  at  law 
against  a  mill  owner  for  keeping  his  dam  too  high,  will 
not  authorize  an  injunction  restraining  him  from  re-building 
it  at  all.i« 

§  843.  Erection  of  dam  prohibited  by  law.  Where  the 
laws  of  a  state  expressly  prohibit  the  erection  of  any 
dam  or  other  obstruction  over  a  navigable  river,  an  injunc- 
tion will  be  allowed  to  prevent  the  erection  v/ithout  legis- 
lative authority  of  a  dam  in  such  manner  as  to  obstruct 
the  free  use  and  navigation  of  the  river.  And  in  such  case, 
a  company  incorporated  for  the  improvement  of  the  river, 
which  suffers  a  damage  in  the  loss  of  tolls  by  the  obstruction, 
sustains  such  a  peculiar  and  special  injurj^  as  to  render  it 
a  proper  plaintiff  to  institute  the  action. i" 

§844.  The  general  doctrine  further  illustrated.  Equity 
will  not,  however,  enjoin  the  erection  of  a  dam  and  the 
overflowing  of  land  upon  the  ground  of  injury  to  the  public 
health,  upon  the  application  of  private  citizens  who  show 
no  injury  to  their  health  by  the  proposed  erection,  but  only 
an  injury  to  their  lands.^^  Nor  will  the  continuance 
of  a  mill-dam  be  restrained  upon  the  ground  that  it  renders 
plaintiff' 's  residence  unhealthy,  when  it  does  not  clearly 
appear   that   the    injury   is    irreparable,    or   that   it    can   not 

14  Wing  r.    Fairhaven,    8  Cush.,         i<5  id. 
363.  1"  Wisconsin  River  Improvement 

I'-Talley  r.  Tyree,  2  Rob.  (Va.),     Co.   v.   Lyons,    30   Wis.,    61. 
500.  18  Vail  v.  Mix,  74  111.,  127. 


CHAr.  XIII.]  AGAINST  NUISANCE.  805 

be  compensated  in  damages.^ '-^  And  when  it  is  sought  to 
restrain  the  construction  of  a  dam  over  a  navigable  river 
upon  the  ground  that  it  will  obstruct  navigation,  the  work 
being  in  the  nature  of  a  public  improvement  authorized  by 
an  act  of  legislature,  equity  will  not  enjoin  its  construction 
merely  upon  theoretical  opinions  as  to  the  injury,  or  upon 
the  theory  of  plaintiff's  bill  that  no  dam  can  be  constructed 
at  the  place  in  question  without  obstructing  the  navigation 
of  the  river.-o  Nor  will  the  construction  of  a  dam  over  a 
river  be  enjoined  upon  the  ground  that  the  statute  author- 
izing its  construction  does  not  provide  compensation  for 
lands  which  may  be  overflowed,  when  it  is  not  shown  that 
any  lands  will  be  overflowed  as  the  result  of  such  construc- 
tion.21  And  when  the  alleged  nuisance  consists  in  the  erec- 
tion of  a  dam  below  plaintiff's  mill  in  such  manner  as  to 
back  up  the  water  and  to  obstruct  the  wheel  of  plaintiff's 
mill,  an  injunction  will  be  withheld  when  a  full  and  ade- 
quate legal  remedy  is  provided  by  the  laws  of  the  state.22 
And  an  injunction  against  the  erection  of  a  mill-dam  has 
been  refused  when  its  eft'ect  would  be  to  work  a  forfeiture 
of  the  charter  and  franchise  under  which  defendants  were 
operating.23 

§  845.  The  same.  Upon  a  bill  charging  that  defendant  by 
erecting  a  dam  across  his  stream  has  caused  the  water  to 
overflow  plaintift"s  land  situated  farther  up  the  stream,  it  is 
improper  to  enjoin  defendant  in  limine  from  raising  his  dam 
higher  when  no  such  intention  is  charged  or  shown  upon  the 
part  of  defendant.  Nor  should  the  court,  by  its  interlocutory 
injunction  in  such  case,  prevent  defendant  from  protecting 
his  dam  from  destruction  by  high  water  or  otherwise,  when 

19  Thomas  v.  Calhoun,  58  Miss.,  22  Burnett  v.  Nicholson,  72  N. 
80.  C,  334. 

20  Woodman  v.  Kilbourn  Manu-  23  Ottaquechee  W.  Co.  v.  Newton, 
facturing  Co.,  1  Bissell,   546.  57   Vt.,   451. 

21  State  V.  City  of  Eau  Claire,  40 
Wis,  533. 


806  INJUNCTIONS.  [CIIAP.  XIII. 

it  is  not  shown  that  he  is  insolvent,  or  that  plaintiff  is  likely 
to  sustain  an  injury  which  would  be  irreparable  in  dam- 
ages.-- And  it  would  seem  that  a  preliminary  injunction 
restraining  the  erection  of  a  dam  in  such  manner  as  to 
overflow  plaintiff's  land  should  not  be  so  framed  as  to  alter 
the  condition  of  defendant's  dam  at  the  time  of  filing  the 
bill  of  complaint,  but  should  be  limited  in  its  operation  to 
restraining  any  further  erection  or  obstruction.-'"' 

§  846.  Writ  for  removal  of  dam  not  enjoined.  When 
the  owner  of  a  mill-dam  seeks  to  enjoin  a  sheriff'  from  exe- 
cuting a  Avrit  to  remove  so  much  of  the  dam  as  may  be 
necessary  to  prevent  the  water  from  flooding  certain  prem- 
ises, such  writ  being  issued  in  pursuance  of  a  prior  judg- 
ment against  the  former  owners  of  the  dam  finding  it  to 
be  a  nuisance  and  directing  the  removal  of  so  much  of 
the  dam  by  the  sheriff'  as  may  be  necessary  for  the  pur- 
pose named,  it  is  not  error  to  refuse  a  preliminary  in- 
junction against  the  enforcement  of  the  writ.-*'  And  an 
injunction  will  not  lie  to  restrain  municipal  authorities  from 
abating  a  mill-dam  as  a  nuisance,  when  they  have  full  au- 
thority so  to  do;  especially  when,  before  the  filing  of  the 
bill,  the  dam  is  swept  away  by  a  flood,  there  being  nothing 
left  for  the  court  to  enjoin.-" 

§  847.     Adverse   user   by   defendants ;    laches    of   plaintiff. 

To  a  bill  by  land  owners  seeking  to  restrain  the  erec- 
tion of  a  mill-dam  in  such  manner  as  to  flow  back  the 
water  upon  plaintiff's  land,  it  is  a  sufficient  answer  that  de- 
fendants and  their  grantors  had  for  fifty  years  prior  thereto 
continuously  enjoyed  and  used  the  right  to  flow  the  water 
back  upon  plaintiff"s  lands  by  such  a  niill-daui,  such  user 
being  adverse  and  under  a  claim  of  ownership.-^  Nor  will  an 
injunction   bo   allowed  to   restrain   the   overflow   and   settling 

^■« Wheeler  v.   Steele,   50   Ga.,  34.        -•  Mayor  r.  Mitchell,  79  Ga.,  807, 

i--  Tatem  v.  Gilpin,  1  Del.  Ch.,  13.     5  S.  E.,  201. 

20  Akin  /'.  Davis,  14  Kan.,  143.  2s  Ogle  r.  Dill.  55  Inch,  130. 


CHAP.    XIII.]  AGAINST  XUISAXCE.  807 

back  of  water  by  the  erection  of  a  dam  where  the  person 
aggrieved  has  for  a  long  period  lain  upon  his  rights  and 
permitted  the  dam  to  be  several  times  rebuilt  without  ob- 
jection, since  he  has  been  guilty  of  such  laches  as  to  entitle 
him  to  no  consideration  in  a  court  of  equity.^'* 

§  847  a.  Injunction  until  payment  of  awaxd.  Where  an 
award  has  been  made  to  complainant  for  damages  resulting 
in  injury  to  his  land  arising  from  the  erection  of  a  dam 
and  the  overflowing  of  the  water,  the  use  and  maintenance 
of  the  dam  may  be  enjoined  until  the  amount  of  the  award 
is  paid.3^ 

29  Sheldon    r.   Rockwell,    9   Wis.,  ^^o  Wilmington  Water  Power  Co. 

166,    a    delay    of    nineteen    years;  v.   Evans,   166   111.,    548,   46    N.   E., 

Cobb  V.  Smith,  16  Wis.,  661,  a  de-  1083;     Ackerman  v.   Horicon  Iron 

lay  of  ten  years.  Mfg.  Co.,  16  Wis.,  151. 


CHAPTER  XIV. 

OF  INJUNCTIONS  FOR  THE  PROTECTION  OF  EASEMENTS. 

I.     Leading  Principles    §  848 

II.     Easements  in  Light  859 

III.  Easements  in  Water   870 

IV.  Rights  of  Way   886 

I.  Leading  Principles. 

§  848.  Jurisdiction  analogous  to  that  in  nuisance. 

849.  General  rule;    right  by  prescription. 

850.  Easement  must  be  certain  and  violation  of  right  clear. 

851.  Covenants  against  erections  will  be  enforced. 

852.  Easement  in  lateral   support. 

853.  Right  of  burial. 

854.  Action  of  trespass. 

855.  Public  squares. 

856.  Dedication  for  burial  ground  and  schoolhouse. 

857.  Protection  to  dowress. 

858.  Removal  of  signs. 

§  848.  Jurisdiction  analog-ous  to  that  in  nuisance.  The 
general  principles  on  which  the  jurisdiction  of  equity  to 
restrain  the  violation  of  easements  is  based  are  similar 
to  those  which  constitute  the  foundation  of  the  relief 
against  nuisances.  Indeed,  so  closely  allied  are  the  two 
subjects  that  it  is  difficult  to  draw  the  line  between  what 
constitutes  a  violation  of  an  easement  and  what  a  nuisance. 
In  a  generic  sense  every  violation  of  an  easement  may  be 
considered  as  a  nuisance,  although  the  converse  of  the 
proposition  does  not  hold  true.  In  both  cases,  to  warrant 
the  interposition  of  equity,  an  irreparable  injury  must  be 
made  to  appear,  which  it  not  susceptible  of  adequate  com- 
pensation in  pecuniary  damages,  or  which,  from  the  nature 
of    the    case,    would    occasion    a    constantly    i-eeurring    griev- 

808 


CHAP.  XIV.]  PROTECTION    OF    EASEMENTS.  809 

ance,  such  as  loss  of  health,  trade,  business,  or  destruction  of 
means  of  subsistence.^ 

§  849.  General  rule ;  right  by  prescription.  It  may  be 
stated  as  a  general  rule  that  where  an  easement  or  servi- 
tude is  annexed  or  pertains  to  a  private  estate,  either  by 
grant,  covenant  or  prescription,  any  encroachment  upon  the 
quiet  enjoyment  and  exercise  will  be  prevented  by  injunc* 
tion.2  Thus,  where  one  has  sold  a  lot  adjoining  his  private 
residence  on  condition  that  it  shall  not  be  used  in  any 
manner  offensive  to  the  original  owner,  any  violation  of  this 
covenant  will  be  restrained.^  And  where  the  easement  is 
acquired  by  prescriptive  use  for  a  long  period  of  years, 
it  is  as  much  entitled  to  protection  in  equity  as  though 
resulting  from  grant  or  covenant.^  And  plaintiff*  who  has 
long  enjoyed  and  used  an  easement  consisting  in  the  right 
to  drain  the  surplus  water  upon  his  premises  through  and 
over  defendant's  premises  may  enjoin  an  obstruction  of  the 
right.^  So  acquiescence  for  twenty  years  in  defendant's  use 
and  enjoyment  of  the  right  will  prevent  complainant  from 
enjoining  such  use.^  But  where  the  right  or  easement  is. 
based  upon  prescription,  it  must  be  shown  to  have  been  in 
exclusion  of  the  rights  of  others.  Thus,  where  complainant 
relies  on  twenty  years  adverse  user  and  enjoyment  of  a 
fishery  in  a  navigable  river  to  restrain  defendant  from 
interfering  with  his  easement  by  the  erection  of  a  wharf  and 
running  steamboats,  the  absence  of  an  averment  in  the  bill 

iWebber  r.  Gage,  39  N.  H.,  182.  31,   29   N.   E.,   11;    Yeager  v.   Mau- 

and  cases  cited.     And  see  Sander-  ning,  183  111.,  275,  55  N.  E.,  691. 

lin   V.    Baxter,    76    Va.,    299.      See,  3  Seymour  v.  McDonald,  4  SandL 

also,  chapter  on  nuisances,  ante.  Ch.,  502. 

2  Webber  v.  Gage,  39  N.  H.,  182;  4  Hulme  r.  Shreve,  3  Green  Ch., 

Seymour    v.    McDonald,     4     Sandf.  116.     And  see  Shreve  v.  Voorhees, 

Ch.,    502;     Hulme     v.     Shreve,      3  2  Green  Ch.,  25. 

Green  Ch.,  116;     Hills  r.  Miller,  3  s  Sanderlin    v.   Baxter,     76    Va., 

Paige,    254;    Trustees  v.   Cowen,   4  299. 

Paige,  510;  Sanderlin  v.  Baxter,  76  6  Haight  v.   Morris  Aqueduct,    4 

Va.,  299;  Sheeks  v.  Erwin,  130  Ind,.  Wash.  C.  C,  601. 


810  INJUNCTIONS.  [chap.  XIV. 

that  such  use  was  in  exclusion  of  all  others  will  be  fatal  to 
•complainant's  case."^ 

§  850.  Easement  must  be  certain  and  violation  of  right 
clear.  To  authorize  the  interference  in  this  class  of  cases 
the  easement  should  be  itself  certain  and  capable  of 
being  clearly  ascertained,  and  there  should  be  a  clear  and 
palpable  violation  of  the  right.^  And  where  only  a  pos- 
sible injury  to  complainant's  basement  is  shown,  as  in  the 
•erection  of  a  wharf  where  it  does  not  appear  that  his  prop- 
erty rights  will  be  violated,  and  where  such  injury  as  may 
result  can  be  remedied  at  law,  an  injunction  will  not  be  al- 
lowed.^ Nor  will  the  owner  of  real  estate  be  restrained 
from  making  reasonable  improvements,  such  as  the  erection 
of  buildings,  on  the  ground  of  endangering  a  neighboring 
•edifice,  if  the  owner  of  the  adjacent  premises  possesses  no 
special  privileges  protecting  him  from  such  erections,  either 
by  prescription  or  by  grant  from  the  person  making  the 
^improvement,  or  from  those  under  whom  he  claims  title.^^ 

§  851.     Covenants   against  erections   will  be  enforced.     A 

•covenant  in  a  conveyance  not  to  erect  or  permit  the 
■erection  of  any  buildings  on  the  premises  of  the  grantor 
in  front  of  the  premises  conveyed  is  the  grant  of  an 
•easement,  and  the  grantee  is  entitled  to  an  injunction  to 
restrain  the  owner  of  the  servient  estate  from  the  erection 
of  buildings  in  violation  of  his  covenant.^  ^  And  where  the 
vendee   of  land  has  purchased  upon   the   strength   of   repre- 

T  Delaware  v.  Stump,  8  Gill  &  J.,  Trustees   r.    Cowen,   4   Paige,   510. 

479.  For  a  case  where    an    injunction 

8  Olmstead  v.   Loomis,   6    Barb.,  was    refused,   when   sought   to   re- 

162;    Howell   Co.   v.   Pope   Glucose  strain  defendants  from  selling  for 

Co.,  171  111.,  350,  49  N.  E.,  497.  building    purposes   an   estate   over 

'•>  Taylor  v.  Brookman,  45  Barb.,  which    plaintiff   had     a     right    of 

106.  shooting  for  a  term  of  years,  see 

1"  Lasala  r.  Holbrook,    4    Paige,  Pattisson  v.  Gilford,  L.  R.  18  Eq., 

160.  259. 

11  Hills  t-.   Miller,   3   Paige,   254; 


'CHAP.  XIV,]  PROTECTION    OF    EASEMENTS.  811 

sentations  made  by  the  vendor  that  an  alley  should  be  es- 
tablished and  perpetually  maintained  to  a  piece  of  land 
adjacent,  even  though  the  representations  were  not  made 
in  writing,  the  obstruction  of  such  right  of  way  will  be  per- 
petually enjoined.!-  So  the  grantee  of  real  estate  may  be 
restrained  from  the  violation  of  covenants  on  his  part 
against  erections  upon  the  premises  conveyed.  And  where 
real  estate  is  sold,  with  covenants  by  the  grantee  that  no 
buildings  shall  be  erected  thereon,  and  passes  through  suc- 
cessive hands,  the  final  owner  in  fee  with  notice  of  such 
covenants  will  be^  enjoined  from  violating  the  agreement  by 
erecting  buildings  contrary  to  its  terms.^^  So  a  covenant  in 
a  conveyance  that  neither  the  grantee  nor  any  persons 
■claiming  under  him  shall  erect  upon  the  premises  conveyed 
buildings  exceeding  a  specified  depth  confers  such  an  ease- 
ment upon  the  grantor,  or  those  claiming  the  title  to  adja- 
cent premises  under  him,  as  to  warrant  relief  by  injunction 
against  a  violation  of  the  covenant.^^ 

§  852.  Easement  in  lateral  support.  The  relief  will  be  ex- 
tended for  the  protection  of  an  easement  to  sujjport  where 
defendant's  acts  tend  to  the  destruction  of  the  right.  Thus, 
the  owner  of  one-half  of  an  ancient  solid  party-wall  has 
been  enjoined  from  removing  a  portion  thereof,  and  erecting 
a  new  wall  on  his  own  land  at  a  distance  of  two  inches  from 
that  left  standing,  the  original  wall  having  been  long  used 
for  the  support  of  buildings  on  either  side.^^  In  the  ab- 
sence, however,  of  some  contract  or  obligation  to  the  con- 
trary an  easement  in  a  party-wall  between  adjacent  premises 
■continues  only  so  long  as  the  buildings  continue,  and  upon 
their  destruction  by  fire  one  of  the  parties  ma}-  restrain  the 

12  Trueheart  v.  Price,    2    Munf.,  i*  Lattimer  r.   Livermore,  72  N. 
468.  Y.,  174. 

13  Mann    v.   Stephens,    15    Sim.,  i5  Phillips  v.  Bordman,  4  Allen, 
377.     And  see  Seymour  v.  McDon-  147. 

aid,  4  Sandf.  Ch.,  502. 


812  INJUNCTIONS.  [CIIAP.  XIV. 

other  from  replacing  or  using  the  wall.^^  But  a  land  owner 
is  entitled  to  have  his  land  in  its  natural  state  supported  by 
the  adjoining  land  of  his  neighbor,  and  this  right  may  be 
protected  by  injunction  in  a  proper  case.^'''  And  where  de- 
fendant, by  mining  operations  upon  his  own  premises,  adja- 
cent to  those  of  plaintiff,  has  endangered  the  walls  and  lateral 
support  of  plaintiff' 's  house,  he  may  be  enjoined  from  work- 
ing under  plaintiff's  laud,  or  within  his  own  boundary  in 
such  manner  as  to  occasion  any  subsidence  or  alteration 
of  the  surface  of  plaintiff's  land.^^  If,  however,  the  substan- 
tial controversj'  is  as  to  the  real  dividing  line  between  the 
tw^o  parcels  of  land,  relief  by  injunction  will  be  denied,  leav- 
ing the  parties  to  their  remedy  at  law.^^  So  the  construc- 
tion of  drains  and  ditches  upon  one's  own  lot,  so  as  to 
conduct  the  water  accumulating  thereon  to  and  against  the 
Avail  of  a  building  upon  an  adjacent  lot,  in  such  manner  as 
to  weaken  the  wall  and  render  it  dangerous  and  unsafe^ 
may  be  enjoined.  For,  while  the  owner  of  an  upper  lot 
has  a  natural  easement  or  servitude  in  an  adjoining  and 
lower  lot  to  the  extent  of  the  natural  flow  of  water  from 
the  upper  to  the  lower  lot,  he  has  no  right  to  increase  that 
servitude  by  leading  in  more  water  to  the  injury  of  the 
lower  lot.20  But  the  fact  that  the  eaves  of  a  house  project 
over  an  adjoining  lot  to  such  an  extent  as  to  throw  the 
water  from  the  roof  upon  such  lot  will  not  justify  an  in- 
junction, when  it  does  not  appear  that  irreparable  injury 
will  follow.21 
•  §  853.  Right  of  burial.  The  right  of  burial  in  a  church 
yard,  though  conveyed  by  grant,  is  nevertheless  considered 
as  an  easement  rather  than  a  title  to  the  freehold,  and  an 
injunction   will   not   be   allowed   the   owner   to    prevent   such 

in  Hoffman    v.    Kuhn,    57    Miss.,  lo  Wykes  r.  Ringleberg,  49  Mich., 

746.  567. 

17  Hunt    v.    Peake,    Jolin.,    705;  -"  Goldsmith  r.  Elsas,  53  Ga.,  186. 

Trowbridge  r.  True,  52  Conn.,  190.  m  Cherry  v.  Stein,  11  Md.,  1. 

iH  Hunt   V  Peake,   John.,   705. 


CHAP.  XIV.]  PEOTECTION    OF    EASEMENTS.  813 

disposal  of  the  soil  and  removal  of  the  remains  interred 
therein  as  the  court  may  have  ordered  on  application  of  the 
officers  of  the  church.22 

§  854.  Action  of  trespass.  The  owners  of  an  easement  will 
not  be  allowed  to  restrain  the  owner  of  the  servient  estate 
from  proceeding  in  an  action  of  trespass,  where  the  grounds 
of  defense  to  the  action  are  partly  legal  and  partly  equitable, 
but  the  action  at  law  will  be  allowed  to  proceed.  In  such 
case,  if  the  legal  grounds  relied  upon  in  defense  are  main- 
tained in  the  action  at  law,  no  proceedings  in  equity  are 
necessary;  while  if  they  are  not  sustained  and  it  afterward 
becomes  necessary  for  a  court  of  equity  to  take  cognizance 
of  the  equitable  questions  involved,  the  court  will  know 
what  amount  of  damages  has  been  assessed  by  the  jury  in 
the  trial  at  law,  and  will  thereby  be  better  enabled  to  se- 
cure that  which  has  been  decided  at  law  to  be  full  com- 
pensation for  the  easement.23 

§  855.  Public  squares.  The  right  which  it  is  sought  to 
protect  by  injunction  may  result  from  a  dedication  of  land 
to  public  uses,  as  well  as  from  express  grant  or  adverse  pos- 
session. Thus,  where  land  has  been  dedicated  to  the  use 
of  the  public  as  a  public  square,  the  owners  of  lots  adjoin- 
ing the  square  who  have  purchased  their  lots  and  made 
improvements,  relying  upon  such  dedication  to  the  public 
use,  are  entitled  to  the  aid  of  equity  to  restrain  the  erec- 
tion of  private  buildings  on  the  square,-^  or  to  restrain  the 
enclosure  of  a  portion  of  the  square  for  private  uses,^^  or  to 
restrain  its  unauthorized  sale.-^  And  where  the  proprietors 
of   lands   in   laying   off   a  town   have    dedicated   a   block    of 

22  Richards  v.  Northwest  P.  D.  v.  Auten,  77  111.,  325.  And  see, 
Ct,  32  Barb.,  42.  post,  §  1275. 

23  Barnard  v.  Wallis,  1  Cr.  &  Ph.,  25  Wheeler  v.  Bedford,  54  Conn., 
85.  244,  7  Atl.,  22. 

24  Rutherford  v.  Taylor,  38  Mo.,  -^  Cummings  v.  City  of  St.  Louis, 
315.     And  see  Brown  v.  Manning.  90  Mo.,  259,  2  S.  W.,  130. 

6  Ohio,  298;  Village  of  Princeville 


814  INJUNCTIONS.  [chap.  XIV. 

ground  to  the  use  of  the  public  as  a  public  square,  intended 
for  the  convenience  and  pleasure  of  the  inhabitants,  and  the 
corporate  authorities  of  the  town  or  village  have  acquiesced 
in  its  use  for  such  purposes  for  many  years,  they  may  be 
enjoined  from  diverting  such  square  from  its  proper  use  by 
the  erection  of  a  town  hall  thereon.-^  So  purchasers  of  lots, 
fronting  upon  a  square  which  was  dedicated  by  the  original 
owner  to  the  public  use  for  a  court  house,  having  purchased 
upon  the  faith  of  such  dedication,  may  restrain  the  county 
authorities  from  diverting  the  square  to  a  use  not  con- 
templated by  the  original  dedication,  such  as  the  erection  of 
a  jail  thereon.28  So  where  land  has  been  dedicated  to  a  city 
for  use  as  a  public  park,  to  be  kept  at  all  times  free  of 
buildings,  and  the  dedication  has  been  accepted,  the  city 
takes  title  subject  to  a  perpetual  trust  in  favor  of  the  public 
and  will  be  enjoined  at  the  instance  of  an  abutting  owmer 
from  erecting  buildings  in  violation  of  the  terms  of  the  dedi- 
cation.-^ So  w^here  an  injunction  had  been  granted  to  re- 
strain defendant  from  interfering  with  land  alleged  to  have 
been  dedicated  to  the  use  of  the  public,  and  it  appeared 
that  the  land  had  been  so  used  by  the  public  for  many 
years,  and  defendant  bj'  his  answer  showed  no  satisfactory 
title  to  the  premises,  it  was  regarded  as  proper  to  continue 
the  injunction  until  the  hearing.^''  Nor  will  the  original 
proprietors,  who  have  dedicated  land  to  be  used  as  a  pub- 
lic square,  afterward  be  allowed  to  appropriate  it  to  their 
own  private  use,  and  an  adjacent  lot  owner  is  a  proper 
party  complainant  to  a  bill  in  equity  to  enjoin  such  ap- 
propriation.- Such  a  complainant,  being  one  of  the  inhabi- 
tants of  the  town  and  holding  property  contiguous  to  the 
square,    is    not    a    mere    volunteer    assuming    to    protect    the 

•^■!  Village  of  Princeville  r.  Auten,  111.,  392,  48  N.  E.,  927,  38  L.  R.  A.> 

11   111.,  325.  849,  61  Am.  St..  Rep.,  185. 

2N  County    of    Harris    r.    Taylor,  ;'o  Trustees    r.    Gray,    12     C.     E. 

58  Tex.,  690.  Green,  278. 

2»  City  of  Chicago   r.   Ward,   1G9 


CHAP.  XIV.]  PKOTECTION    OF    EASEMENTS.  SIS' 

rights  of  others,  but  is  injured  in  his  individual  rights,  and 
is  entitled  to  the  aid  of  equity  to  protect  his  own  interests.-''^ 
Where,  however,  the  owners  of  adjacent  lots  sustain  no  in- 
jury to  their  individual  rights,  equity  will  not  interfere. 
Thus,  where  a  square  has  been  conveyed  to  a  county  for 
the  erection  of  public  buildings  and  a  court  house,  adjacent 
lot  owners  will  not  be  permitted  to  restrain  the  county  com- 
missioners from  leasing  portions  of  the  ground  for  private 
purposes,  reserving  the  rent  to  the  county,  complainants  in 
such  case  being  regarded  merely  as  volunteers  having  no 
personal   interests   to    be    protected.^- 

§  856.  Dedication  for  burial  ground  and  school  house. 
Where  land  has  been  dedicated  to  the  public  use  for  cer- 
tain specified  purposes,  an  injunction  will  not  usually  be  al- 
lowed to  prevent  the  carrying  out  of  such  purposes.  Thus, 
the  owner  of  lands  having  dedicated  a  portion  of  them 
during  his  life-time  for  a  burial  ground  and  school  house 
lot,  his  heir,  who  is  a  non-resident,  will  not  be  allowed  to 
enjoin  the  rebuilding  of  a  school  house  upon  the  premises. 
in  question.  Under  such  circumstances  the  erection  of  a 
new  school  house  upon  that  part  of  the  ground  dedicated 
to  school  purposes  is  no  encroachment  upon  the  dedication, 
and  it  is  error  to   enjoin  its  erection.^^ 

§  857.  Protection  to  dowress.  The  aid  of  an  injunction 
has  been  granted  for  the  protection  of  the  interest  of  a 
dowress  in  easements  appurtenant  to  real  property  allotted 
to  her  for  her  dower.  Thus,  where  a  widow  received  as 
her  dower  a  portion  of  a  building  consisting  of  several 
stores  in  a  city,  and  the  owners  of  the  remaining  stores  in 
The  same  building,  deriving  their  title  under  the  will  of  the 
deceased    husband,   were    about   to    tear    down   their   portion 

31  Brown  v.  Manning,  6  Ohio,  298.        33  Pott  v.  School  Directors,  42  Pa.. 

32  Smith  V.  Heuston,  6  Ohio,  101.     St.,  132. 
And  see  Putnam  v.    Valentine,    5 

Ohio,  187. 


816  INJUNCTIONS.  [chap.  XIV. 

of  the  general  building  for  the  purpose  of  erecting  better 
improvements,  thereby  depriving  the  widow  of  the  use  of  a 
stairway  necessary  to  reach  the  upper  stories  of  her  portion 
of  the  building,  and  depriving  her  of  a  sky-light  necessary 
for  lighting  the  upper  floors,  an  injunction  was  allowed  for 
the  protection  of  the  easements  in  question.^^' 

§  858.  Removal  of  signs.  Equity  will  not,  however,  in- 
terfere by  injunction  in  this  class  of  cases,  when  it  is  not 
satisfactorily  shown  that  the  proposed  interference  with 
plaintiff's  easement  would  be  unreasonable  or  vexatious. 
Thus,  where  plaintiff  had  a  perpetual  easement  in  the  use 
of  a  stairway  between  his  building  and  that  of  defendant, 
and  sought  to  enjoin  defendant  from  tearing  down  or  re- 
moving any  signs  that  plaintiff'  or  his  tenants  might  place 
on  the  stairway,  the  relief  was  refused,  upon  the  ground 
that  the  court  could  not  determine  in  advance  whether  a 
proposed   sign   would   be   reasonable   or   unreasonable.^^ 

34  Morrison  v.  King,  62  111.,  30.  ss  Bennett  v.  Seligman,  32  Mich., 

500. 


•CHAP.  XIV,]  PEOTECTIOX    OF    EASEMENTS.  817 


II.  Easements  in  Light. 

•|  859.  The  general  doctrine  stated. 

860.  Tests  to  be  applied;  illustrations. 

861.  The  same. 

862.  Prescriptive  right  protected. 

863.  Enlargement  of  windows;     rebuilding  house;    change  of  servi- 

tude. 
:864.     Lessor  and  lessee. 

865.  When  relative  convenience  balanced. 

866.  When  relief  refused. 

867.  Effect  of  plaintiff's  delay. 

868.  Prescriptive  right  denied  in  this  country;   erection  of  building 

over  canal. 

869.  Title  derived  from  common  source. 

§  859.  The  general  doctrine  stated.  In  England  the  pre- 
ventive jurisdiction  of  equity  is  frequently  called  into  ex- 
ercise for  the  purpose  of  protecting  easements  in  ancient 
lights  which  have  been  long  enjoined,  and  the  right  to  the 
uninterrupted  use  and  enjoyment  of  such  lights  is  freely 
protected   by    injunction.^      In    cases   of   this   nature,    equity 

1  Staight  V.  Burn,  L.  R.  5  Ch.,  served,  that  in  England  the  righC 
163;  Theed  v.  Debenham,  2  Ch.  D,  to  equitable  relief  for  the  protec- 
165;  Potts  V.  Levy,  2  Drew.,  272;  tion  of  ancient  lights  is  to  a  con- 
Simper  V.  Foley,  2  John.  &  H.,  siderable  extent  dependent  upon 
555;  Gale  v.  Abbott,  8  Jur.  N.  S.,  the  Statute,  2  and  3  Wm.  IV.,  Ch. 
^87;  Maguire  r.  Grattan,  I.  R.  2  72,  §  III,  which  provides  as  fol- 
Eq.,  246;  Kelk  v.  Pearson,  L.  R.  6  lows:  "And  be  it  further  enacted, 
Ch.,  809;  Beadel  r.  Perry,  L.  R.  3  that  when  the  access  and  use  cf 
Eq.,  465;  Martin  v.  Headon,  L.  R.  light  to  and  for  any  dwelling 
2  Eq.,  425;  Dent  v.  Auction  Mart  house,  workshop,  or  other  build- 
Co.,  L.  R.  2  Eq.,  238;  Weston  r.  ing,  shall  have  been  actually  en- 
Arnold,  L.  R.  8  Ch.,  1084;  Dyers  joj^ed  therewith  for  the  full  period 
Company  r.  King,  L.  R.  9  Eq.,  438;  of  twenty  years  without  interrup- 
Leech  v.  Schweder,  L.  R.  9  Ch.,  tion,  the  right  thereto  shall  be 
463;  Martin  v.  Price,  63  L.  J.  N.  deemed  absolute  and  indefeasible, 
S.  Ch.,  209;  Home  &  Colonial  any  local  usage  or  custom  to  the 
Stores  V.  Colls,  (1902)  1  Ch.,  302;  contrary  notwithstanding,  unless 
Cowper  V.  Laidler,  (1903)  2  Ch.,  it  shall  appear  that  the  same  was 
337.  It  should,  however,  be  ob-  enjoyed  by  some  consent  or  agree- 
52 


818 


INJUNCTIONS. 


[chap.  XTV. 


proceeds  upon  the  principle  that  when  there  is  a  material 
and  substantial  injury  to  a  clear,  legal  right  and  when  from 
the  nature  of  the  case  damages  would  not  afford  a  complete 
compensation,  it  is  proper  to  interfere  by  injunction.-  And 
where  defendant  is  encroaching  upon  plaintiff's  ancient  lights 
by  building  upon  adjacent  premises,  if  plaintiff's  title  be  ad- 
mitted, the  relief  may  be  allowed  without  requiring  him  to 
try  his  right  at  law.^  It  is  not,  how^ever,  every  deprivation 
of  ancient  lights  that  will  authorize  the  interference  by  in- 
junction, nor  is  the  diminution  of  the  value  of  the  premises 
by  the  erection  of  buildings  so  as  to  darken  one's  Avindows 
alone  a  sufficient  ground,  nor  the  fact  that  an  action  on  the 
case  would  lie  for  the  damages  rsulting  from  such  diminu- 
tion. To  warrant  the  relief  there  must  be  such  material  in- 
jury to  the  comfort  of  those  dwelling  in  the  neighboring 
house  as  requires  the  exercise  of  a  preventive  as  well  as 
a  remedial  power.^     And  where  it  is  not  shown  that  the  ob- 


ment  expressly  made  or  given  for 
that  purpose  by  deed  or  writing." 
As  to  the  right  to  relief  under  a 
statute  authorizing  an  injunction 
against  the  malicious  erection  by 
an  owner  or  lessee  of  land  of  any 
structure  thereon  intended  to  an- 
noy or  injure  any  proprietor  of  ad- 
jacent land  in  respect  to  his  use 
or  disposition  of  the  same,  see 
Harbison  r.  White,  46  Conn.,  106. 

-*  Staight  V.  Burn,  L.  R.  5  Ch., 
163. 

y  Potts  V.  Levy,  2  Drew.,  272. 

•1  Attorney-General  r.  Nichol,  16 
Ves.,  338.  The  general  principles 
underlying  the  jurisdiction  of 
equity  to  interfere  for  the  protec- 
tion of  easements  in  lights  are  well 
laid  down  by  Lord  Eldon  in  this 
case  as  follows:  "The  foundation 
of  this  jurisdiction,  interfering  by 
injunction,  is  that  head  of  mischief 


alluded  to  by  Lord  Hardwicke, 
that  sort  of  material  injury  to  the 
comfort  of  the  existence  of  those 
who  dwell  in  the  neighboring 
house  requiring  the  application  of 
a  power  to  prevent,  as  well  as 
remedy,  an  evil  for  which  dam- 
ages, more  or  less,  would  be  given 
in  an  action  at  law.  The  position 
of  the  building,  whether  opposite, 
at  right  angles  or  oblique,  is  not 
material.  The  question  is,  whether 
the  eifect  is  such  an  obstruction  as 
the  party  has  no  right  to  erect, 
and  can  not  erect  without  those 
mischievous  consequences,  which 
upon  equitable  principles  should  be 
not  only  compensated  by  dam- 
ages, but  prevented  by  injunction. 
*  *  *  I  repeat  the  observation 
of  T>ord  Hardwicke,  that  a  diminu- 
tion of  the  value  of  the  premises 
is  not  a  ground;  and  there  is  as  lit- 


CHAP.  XIV.] 


PROTECTION    OF    EASEMENTS. 


819 


striietion  of  the  light  would  cause  a  material  injury  to  the 
comfort  of  complainant,  the  relief  will  not  be  granted.^ 
§860.  Tests  to  be  applied;  illustrations.  In  cases  where 
relief  by  injunction  is  sought  to  prevent  a  deprivation  of 
ancient  lights,  the  question  for  determination  is  usually 
as  -to  the  degree  of  deprivation.  And  where  a  substantial 
injury  is  shown  to  result  from  the  proposed  erection  and 
the  darkening  of  plaintiff's  lights,  a  court  of  equity  may 
properly  interfere.^  The  test  to  be  applied  is,  whether 
plaintiff's  house  is,  by  the  obstruction  which  he  seeks  to 
enjoin,  rendered  in  a  substantial  degree  less  fit  for  purposes 
of  occupation  than  before.  In  other  words,  the  diminution 
of  light  must  be  a  substantial  diminution,  or  one  which 
renders  plaintiff's  house  substantially  less  comfortable.    This 


tie  doubt  that  this  court  will  not 
interpose  upon  every  degree  of 
darkening  ancient  lights  and  win- 
dows. There  are  many  obvious 
cases  of  new  buildings  darkening 
those  opposite  to  them,  but  not  in 
such  a  degree  that  an  injunction 
could  be  maintained,  or  an  action 
upon  the  case;  which,  however, 
might  be  "maintained  in  many 
cases  which  would  not  support  an 
injunction.  These  affidavits,  there- 
fore, stating  only  that  the  ancient 
lights  will  be  darkened,  but  not 
that  they  will  be  darkened  in  a 
sufficient  degree  for  this  purpose, 
will  not  do." 

5  Wilson  V.  Cohen,  Rice  Eq.,  80. 
It  is  often  a  matter  of  great  diffi- 
culty to  determine  what  amount  of 
obstruction  to  light  will  authorize 
an  injunction.  The  rule  at  law  as 
to  the  degree  of  obstruction  which 
is  actionable  is  laid  down  in  Back 
V.  Stacey,  2  Car.  &  P.,  465,  sub- 
stantially as  follows:     "To  consti- 


tute an  illegal  obstruction  of  light 
by  building,  it  is  not  sufficient  that 
plaintiff  has  less  light  than  before, 
or  that  the  part  of  his  house  af- 
fected can  not  be  used  for  all  the 
purposes  to  which  it  might  other- 
wise have  been  applied.  In  order 
to  give  a  right  of  action  there  must 
be  a  substantial  privation  of  light 
sufficient  to  render  the  occupation 
of  the  house  uncomfortable,  or  to 
prevent  the  plaintiff  from  carrying 
on  his  accustomed  business  on  the 
premises  as  beneficially  as  he  had 
formerly  done.  It  may  be  difficult 
to  draw  the  line,  but  a  distinction 
must  be  drawn  between  a  practical 
inconvenience  and  a  real  injury  to 
the  plaintiff  in  the  enjoyment  of 
the  premises." 

G  Maguire  v.  Grattan,  I.  R.  2  Eq., 
246.  In  this  case  it  was  shown 
that  the  proposed  erection  would 
exclude  more  than  one-half  of  the 
former  sky  area  pertaining  to- 
plaintiffs  premises. 


820  INJUNCTIONS.  [CIIAr.  XIV. 

being  shown,  equity  may  interfere,  even  to  the  extent  of 
making  its  injunction  mandatory  by  directing  the  restora- 
tion of  matters  to  the  condition  in  which  they  were  before 
defendant's  erection  was  begun  J  And  in  the  case  of  ob- 
struction to  ancient  lights  a  mandatory  injunction  has  been 
allowed,  even  before  the  hearing.^  But  where  it  is  not  shown 
that  the  obstruction  which  it  is  sought  to  enjoin  is  such 
as  to  interfere  with  the  ordinary  occupations  of  life,  an 
injunction  will  be  withheld,  the  real  question  to  be  de- 
termined being  whether  the  light  is  so  obstructed  as  to  cause 
material  inconvenience  to  the  occupants  of  plaintiff's  house 
in  the  ordinary  and  accustomed  occupations  of  life.^  And 
when  plaintiffs  fail  to  show  any  substantial  damage  as  likely 
to  result  to  themselves,  the  relief  will  be  withheld.^^^ 

§  861.  The  same.  When  it  is  sought  to  enjoin  an  obstruc- 
tion to  ancient  lights  of  premises  used  for  business  purposes, 
the  court  will  not  interfere  unless  the  obstruction  to  the 
lights  renders  the  building  to  a  material  extent  less  suitable 
for  the  business  conducted,  but  will  leave  the  person  ag- 
grieved to  his  damages  at  law;  the  foundation  of  the  juris- 
diction being  that  injury  to  property  which  renders  it  in 
a  material  degree  unsuitable  for  the  purposes  to  which  it 
is  applied,  or  which  lessens  considerably  the  owner's  enjoy- 
ment. And  it  would  seem  that  the  test  is  to  be  applied 
with  reference  to  the  injury  to  the  business  then  being  con- 
ducted upon  the  premises,  and  not  as  regards  their  possible 
future  use  for  other  purposes.^ ^  To  warrant  the  injunction 
plaintiff  should  show  that  there  will  be  a  permanent  obstruc- 

-  Kelk  V.  Pearson,  L.   R.   6   Ch.,  »  Clark  r.  Clark.  L.  R.  1  Ch.,  IG. 

809;    Home    &    Colonial    Stores   v.  See  also  Durell  v.  Pritchard,  L.  R. 

Colls,   (1902)   1  Ch.,  302.  1   Ch..   244. 

« Beadel   v.   Perry,   L.   R.   3   Eq.,  i'^  City   of   London    Brewery   Co. 

465.    As  to  the  effect  of  delay  upon  v.  Tennant,  L.  R.  9  Ch.,  212. 

the   right  to  a  mandatory  injunc-  n  Jackson  r.  Duke  of  Newcastle, 

lion  in    this    class    of    cases,    see  33  L.  J.  Ch.,  698. 
Senior  r.  Pawson,  L.  R.  3  Eq.,  330. 


CHAP.  XIV.]  PROTECTION    OF    EASEMEXTS.  821 

lion  to  the  access  of  light  to  such  an  extent  as  to  render  the 
occupation  of  his  premises  less  comfortable  than  before,  or 
to  prevent  the  present  tenant  from  carrying  on  his  business 
as  beneficially  as  before ;  and  this  not  being  shown,  equity 
should  not  interfere.^-  But  where  defendant's  structure 
which  it  is  sought  to  enjoin  as  an  obstruction  to  plaintiff's 
light  would  seriously  interfere  with  the  occupation  of  plain- 
tiff''s  house,  and  would  prevent  him  from  carrying  on  his 
business  with  the  same  degree  of  convenience  as  before,  be- 
cause of  such  obstruction  to  light,  a  proper  case  for  injunc- 
tion is  presented.13  So  when  the  case  presented  is  such  as 
would  entitle  plaintiff  to  substantial  damages,  if  suing  at 
law  for  the  obstruction  to  his  ancient  light,  equity  may  in- 
terpose by  injunction.!* 

§  862.  Prescriptive  right  protected.  In  applications  for 
the  aid  of  an  injunction  for  the  protection  of  easements  in 
ancient  lights,  no  distinction  is  made  between  cases  where 
the  right  is  acquired  by  prescription  and  cases  where  it 
rests  in  grant,  the  same  equitable  principles  being  applied 
in  either  case.^^  And  one  who  has  acquired  a  right  to  an- 
cient lights  by  prescription,  having  exercised  the  right  for  a 
period  of  more  than  twenty  years,  is  entitled  to  protection 
by  injunction  against  a  deprivation  of  this  right  by  defend- 
ant building  upon  adjacent  premises.!^  Nor  is  it  a  sufficient 
objection  to  the  granting  of  an  injunction  to  prevent  an 
obstruction  to  plaintiff"s  ancient  lights,  which  he  claims  by 
prescription,  that  he  has  obtained  light  in  other  directions 
which  is  equivalent  to  that  of  which  defendant's  structure 
will  deprive  him,  since  the  right  is  to  be  determined  as  be- 

12  Kino  V.  Rudkin,  6  Ch.  D.,  160.      effect  of  a  covenant  for  quiet  en- 

13  Martin  v.  Headon,  L.  R.  2  Eq.,     joyment. 

425.  i«  Weston  v.  Arnold,  L.  R.  8  Ch., 

14  Dent  V.  Auction  Mart  Co.,  L.  1084.  But  the  relief  has  been  re- 
R.  2  Eq.,  238.  fused  when  the  lights  were  not  an- 

15  Leech  v.  Schweder,  L.  R.  9  Ch.,  cient.  Booth  v.  Alcock,  L.  R.  8 
463.     And  see  this  case  as  to  the  Ch.,  663. 


822  INJUNCTIONS.  [chap.  XIV. 

tween  the  owners  of  the  dominant  and  of  the  servient  es- 
tate.^" So  the  relief  will  be  granted  to  restrain  the  owner 
of  a  house  from  rebuilding  in  such  manner  as  to  darken 
and  obstruct  ancient  lights  and  windows  upon  plaintiff's  ad- 
joining premises.i^  And  the  obstruction  by  new  erections  of 
ancient  lights  upon  plaintiff' 's  premises  has  been  enjoined, 
although  plaintiff's  building  has  been  torn  down  and  there 
are  no  existing  windows  whose  light  is  obstructed  by  the 
structures  which  defendant  is  erecting.^''  But  equity  will 
not  enjoin  a  defendant,  who  is  the  owner  of  adjoining  prem- 
ises, from  maintaining  such  erections  as  may  prevent  plain- 
tiff  from   acquiring   a   prescriptive   right   to    light   and   air.-*^ 

§863.  Enlargement  of  windows;  rebuilding  house;  change 
of  servitude.  Equity  may  enjoin  the  erection  of  a  build- 
ing in  such  manner  as  to  obstruct  plaintift"s  ancient  lights, 
even  though  he  may  have  enlarged  his  windows,  since  in" 
so  doing  he  has  only  exercised  a  natural  right  of  property, 
and  can  not  thereby  lose  any  other  right  which  he  may 
have  acquired.-^  And  when  a  house  has  been  destroyed  and 
rebuilt,  in  determining  whether  the  character  of  ancient 
lights  attaches  to  the  windows  of  the  new  house  so  as  to  en- 
title the  owner  to  protection  by  injunction,  the  principle  to 
be  applied  is,  whether  the  new  windows  would  impose  upon 
the  servient  tenement  a  servitude  additional  to  or  different 
from  that  to  which  it  was  previously  subjected.  AYhenever, 
therefore,  it  appears  in  such  case  that  the  servitude  or  bur- 
den imposed  by  the  new  windows  is  neither  greater  than  nor 
different  from  that  which  formerly  existed,  the  new  win- 
dows may  be  regarded  as  ancient  lights  and  an  injunction 
may   l*    allowed,   if  there   is   a   substantial   and   material  ob- 

17  Dyers  Company  r.  King,  L.  R.  ^'j  Ecclesiastical  Commissioners 
9  Eq.,  438.  r.  Kino,  14  Ch.  D.,  213. 

i«Back  r.   Stacy,  2    Russ.,    121;         -'o  Bonner    r.    Great  Western    R. 
Sutton  V.   Lord   Montfort,   4   Sim.,     Co.,  24  Ch.  D.,  1. 
559.  21  Aynsley  r.  Glover,  L.  R.  10  Ch., 

283. 


CHAP.  XIV.]  PROTECTION    OF    EASEMENTS.  823 

struction  to  the  light. ^-  And  applying  the  same  principle, 
whenever  the  alteration  in  plaintiff's  premises  creates  an 
entirely  new  servitude,  and  the  owner  of  the  ancient  light 
has  so  dealt  with  it  as  to  essentially  alter  its  character  and 
to  convert  it  into  a  different  easement  over  his  neighbor's 
land,  thereby  preventing  defendant  from  enjoying  his  prop- 
erty as  he  might  otherwise  have  done,  an  injunction  Avill 
be  refused  and  plaintiff'  will  be  left  to  seek  his  remedy  at 
law.23 

§  864.  Lessor  and  lessee.  A  tenant  from  year  to  year  is 
entitled  to  protection  by  injunction  to  prevent  an  obstruc- 
tion of  ancient  lights  upon  the  demised  premises;  but  in 
such  case,  the  injunction  should  be  limited  to  the  period 
of  plaintiff' 's  tenancy.-^  But  where  plaintiff,  seeking  to  en- 
join the  obstruction  of  an  ancient  light,  is  a  lessee  whose 
lease  has  expired  during  such  obstruction,  but  he  has 
agreed  for  a  renewal  of  the  lease,  he  will  not  be  denied  an 
injunction  upon  that  ground.--^  As  betw^een  lessor  and  lessee, 
it  is  held  that  the  lessor  will  not,  during  the  continuance  of 
his  lease,  be  allowed  an  injunction  to  restrain  his  lessee 
from  darkening  windows  in  the  demised  premises  and  ob- 
structing light  wdiere  it  is  not  shown  that  the  injury  is  ir- 
reparable and  not  susceptible  of  compensation  in  damages.^*^ 

22  Curriers  Company  r.  Corbett,  2         24  Simper  v.  Foley,  2  John.  &  H.. 
Dr.  &  Sm.,  355.     See  also  Staight     555. 

t'.  Burn,  L.  R.  5  Ch.,  163;   Newson  2.-,  Qale  v.  Abbott,   8   Jur.   N.    S., 

V.   Pender,   27    Ch.   D.,   43.     As    to  987. 

the  effect  of  a  change  in  plaintiff's  2(3  Atkins  v.  Chilson,  7  Met.,  398, 
premises  by  tearing  down  his  old  decided  upon  the  authority  of  In- 
building  and  rebuilding  in  a  dif-  graham  v.  Bunnell,  5  Met.,  118, 
ferent  manner,  as  regards  his  holding  that  an  injunction  will  not 
right  to  an  injunction  to  protect  lie  to  restrain  an  injury  caused  to 
his  ancient  lights  under  English  a  reversionary  interest  in  an  estate 
statutes,  see  National  Co.  r.  Pru-  unless  the  injury  will  be  irrepara- 
dential  Co.,  6  Ch.  D.,  757.  ble,   or,   from   its  nature,   not   sus- 

23  Heath   v.   Bucknall,    L.    R.    8  ceptible     of     adequate     pecuniary 
Eq.,  1.  compensation. 


824  INJU?fCTIOXS.  [chap.  XIV, 

§  865.  When  relative  convenience  balanced.  When  the  al- 
leged nuisance  consists  in  a  diminution  of  light  and  air  to 
plaintiff's  building,  but  no  serious  or  irreparable  injury  is 
shown,  the  court  may  balance  the  relative  inconvenience  to 
the  parties  which  would  result  from  its  interference,  and 
may  refuse  the  injunction;  especially  when  plaintiff's  only 
right  is  as  a  tenant  from  year  to  year,  and  when  he  has. 
already  received  notice  to  quit.-'''  So  if  the  evidence  is  so 
conflicting  upon  the  motion  for  an  interlocutory  injunction 
that  it  is  a  matter  of  great  difficulty  to  determine  between 
the  conflicting  witnesses,  the  court  may  properly  be  governed 
by  considerations  of  the  relative  inconvenience  which  would 
result  to  the  parties  from  granting  the  relief.  And  if,  upon 
weighing  such  considerations,  it  is  apparent  that  the  incon- 
venience which  would  result  to  defendants  by  granting  the 
injunction  would  be  far  greater  than  that  to  plaintiff  by  its. 
refusal,  the  injunction  may  be  refused  in  limine.  It  is. 
proper,  however,  in  such  a  case  to  put  defendants  under 
terms  of  abiding  such  order  as  the  court  may  make  at  the 
final  hearing  concerning  the  removal  of  their  buildings,  if 
they  should  prove  to  be  an  obstruction  to  plaintiff's  ancient 
lights.28  And  the  practice  has  sometimes  prevailed  of  grant- 
ing the  injunction  restraining  defendants  from  making  erec- 
tions which  would  darken  plaintiff' 's  ancient  lights,  with 
liberty  to  defendants  to  apply  to  the  court  with  respect  to 
the  erection  of  any  buildings  upon  their  propert}^-^ 

§  866.  When  relief  refused.  Although  the  building  hy 
defendant  of  a  house  upon  his  own  premises  adjoining  those 
of  plaintiff  may  render  the  prospect  from  plaintiff's  house 
less  pleasant  than  before,  that  will  not  of  itself  suffice  for 
an  injunction.'^'^     And  equity  will  not  interfere  in  this  class. 

27  Jacomb  v.  Knight,  3  DeGex,  J.  2;'  Stokes  v.  The  City  Offices  Co.. 
&  S.,  533.  2  Hem.  &  M.,  650. 

28  Mackey  v.  Scottish  Society,  I.  ••"  Fishmongers  Co.  v.  East  India 
R.  10  Eq.,  114.  Co.,  Dick.,  163. 


CHAP.  XIV.]  PEOTECTION    OF    EASEMENTS.  825 

of  cases  when  plaintiff's  right  is  doubtful,  but  will  leave 
him  to  establish  his  right  at  law.^i  So  when  it  is  sought, 
to  restrain  defendant  from  building  over  what  is  claimed  to 
be  a  public  highway,  in  such  manner  as  to  obstruct  plaintiff's 
light  and  air,  the  relief  will  be  denied  when  plaintiff'  fails  to 
show  a  clear  legal  right,  and  when  he  shows  no  direct  grant 
of  way  or  of  a  right  to  light.^-  And  when  the  structure  com- 
plained of  as  an  obstruction  to  plaintiff's  light  and  air  con- 
sists in  the  erection  of  a  screen  of  glass,  but  there  is  no 
actual  evidence  of  obstruction  to  light  and  air,  and  only  the- 
opinions  of  witnesses  are  presented,  the  court  may  refuse  to 
enjoin.^^ 

§867.  Effect  of  plaintiff's  delay.  Although  the  obstruc- 
tion to  plaintiff's  ancient  light  is  satisfactorily  established, 
yet  when  such  obstruction  has  been  permitted  to  go  on  for  a 
period  of  six  years  with  full  knowledge  upon  the  part  of 
plaintiffs  before  bringing  their  action,  such  delay  will  have 
much  weight  with  the  court  in  refusing  the  injunction.^^ 
Where,  however,  plaintiff's  delay  in  instituting  proceedings, 
has  been  due  to  promises  upon  the  part  of  defendant  to 
remove  the  obstruction,  such  delay  will  not  be  treated  as- 
acquiescence  barring  the  right  to  relief,  and  the  injunction, 
may  still  be  granted  if  sufficient  grounds  are  shown  to  war- 
rant the  exercise   of  the  jurisdiction.^^ 

§  868.  Prescriptive  right  denied  in  this  country ;  erection 
of  building  over  canal.  While,  as  we  have  already  seen, 
an  easement  or  servitude  may  be  created  by  prescription, 
yet  in  this  country  an  exception  is  taken  in  the  case  of  ease- 
ments in  light,  and  the  English  doctrine  of  sustaining  a  right 
to  ancient  lights  and  windows  upon  twenty  years  user  does 

31  Wynstanley  v.  Lee,  2  Swanst.,  34  Gaunt  v.  Fynney,  L.  R.  8  Ch.  8. 
333.  35  Gale   i'.   Abbott,  8   Jur.   N.   S., 

32  Biddle  v.  Ash,  2  Ashmead,  211.     987. 

33  Radcliffe  v.  Duke  of  Portland, 
3  Gif.,  702. 


826                                                       INJUNCTIONS.  [chap.  XIV. 

not   generally   prevail,    and,   while    the   American   authorities 

are  far  from  harmonious,  yet  the  undoubted  weight  of  au- 
thority is  that  mere  user  will  not  constitute  sufficient  ground 

for   an   injuuction.^*^     And   in  the  absence   of   any   grant   or 

36  King  V.  Miller,  4  Halst.  Ch.,  by  another,  can  only  be  in  cases 
559;  Cherry  v.  Stein,  11  Md.,  1;  where  the  party  against  whom  the 
Lapere  v.  Luckey,  23  Kan.,  534.  time  is  running  has  some  means 
But  see,  contra,  Robeson  v.  Pit-  of  preventing  the  act  or  its  con- 
tenger,  1  Green  Ch.,  57;  Clawson  tinuance.  Where  he  has  no  such 
r.  Primrose,  4  Del.  Ch.,  643;  S.  C,  means,  he  is  in  no  default,  and  can, 
15  Am.  L.  Reg.  N.  S.,  6,  and  cases  therefore,  lose  no  right.  And  a 
cited.  See  also  Shipman  v.  Beers,  person  by  doing  and  continuing  an 
2  Abb.  New  Cas.,  435.  King  i'.  act  on  his  property  which  he  has 
Miller,  4  Halst.  Ch.,  559,  was  a. bill  a  right  to  do,  and  which  another 
for  an  injunction  to  restrain  de-  has  no  means  of  preventing,  can 
fendant  from  so  building  as  to  acquire  no  right  injurious  to  the 
close  up  complainant's  window  In  property  of  that  other."  Cherry 
the  gable  end  of  his  house,  which  v.  Stein,  11  Md.,  1,  was  a  bill  to 
he  claimed  was  an  ancient  win-  restrain  defendant  from  erecting 
dow.  Complainant's  house  stood  a  wall  in  such  manner  as  to 
on  the  line  of  his  lot.  The  in-  darken  and  shut  up  the  lights  and 
junction  was  denied,  Halstead,  Vv'indows  upon  one  side  of  corn- 
Chancellor,  saying:  "The  owner  plainant's  house,  complainant  re- 
of  a  lot  has  the  election  to  build  lying  upon  twenty  years  user, 
on  it  as  he  pleases.  The  owner  Eccleston,  J.,  delivering  the  opin- 
of  the  adjoining  lot  has  the  same  ion  of  the  court,  denied  the  applL- 
right.  If  the  one  who  builds  first  cation  of  the  English  rule,  saying; 
chooses  to  build  on  the  line,  the  "Where  A  makes  a  window  in  his 
adjoiniHg  owner  has  no  means  of  own  house,  overlooking  the  open 
preventing  it,  and  has  no  means  grounds  of  B,  it  is  no  infringe- 
of  preventing  the  continuance  of  ment  of  the  rights,  or  encroach- 
the  building  on  the  line.  Where  ment  upon  the  property  of  the  lat- 
one  has  a  right  to  put  up  a  build-  ter.  *  *  And  yet,  under  the 
ing  on  the  spot  where  he  erects  English  rule,  if  the  window  re- 
it,  and  to  continue  it  there,  and  mains  open  and  unobstructed  for 
the  adjoining  owner  can  do  noth-  more  than  twenty  years,  B  can 
ing  to  prevent  its  erection  on  that  not  afterwards  erect  a  building  on 
spot,  and  can  do  nothing  to  pre-  his  land,  if  it  obstructs  the  light, 
vent  its  remaining  there,  it  is  To  prevent  such  a  consequence 
simply  absurd  to  say  that  the  lat-  the  rule  does  not  give  him  any 
ter  can  by  lapse  of  time  lose  his  right  of  action  or  legal  proceed- 
right  to  build  up  to  his  line.  The  ing,  but  his  only  remedy  is  the 
loss  of  a  right  by  lapse  of  time,  seemingly  ill-natured  one  of  ren- 
from   an   act   done   and   continued  dering  the  window  of  his  neighbor 


CHAP.  XIV. J  riiOTECTlON     OF    EASEMENTS.  827 

covenant  giving  to  plaintiff  an  easement  in  light  and  air,  the 
construction  of  a  bay  window  by  defendant  in  such  manner 
as  to  obstruct  the  view  from  and  diminish  the  supply  of 
light  and  air  to  plaintiff's  adjoining  house  will  not  be  en- 
joined.-''^  But,  as  already  indicated,  the  American  authorities 
are  far  from  harmonious,  and  in  Delaware  the  English  doc- 
trine of  title  by  prescription  to  ancient  lights  prevails,  and 
the  obstruction  of  such  lights  by  an  adjacent  owner  may 
be  enjoined.^*^  And  in  New  Jersey  it  is  held  that  Avhen  one 
sells  a  house  so  situated  that  the  light  necessary  for  its  rea- 
sonable enjoyment  is  derived  from  and  over  an  adjoining 
lot  belonging  to  the  same  grantor,  an  easement  to  light  and 
air  over  such  vacant  lot  passes  as  an  incident  to  the  grant, 
because  necessary  to  its  proper  enjoyment.  And  in  such 
case,  a  subsequent  grantee  of  the  adjacent  lot,  with  notice, 
may  be  restrained  from  the  erection  of  a  building  which 
will  obstruct  plaintiff's  light  and  air.^^  So  where  the  co- 
owners  of  a  piece  of  land,  upon  one-half  of  which  is  a 
building  having  a  window  through  wdiich  light  and  air  are 

useless,     by     building     a     wall    or  s"  Jenks  c.  Williams,    115    Mass., 

other  obstruction  for  that  purpose  217. 

alone,  if  at  the  time  he  has  no  ss  Clawson  'V.  Primrose,  4  Del. 
wish  to  build  a  house  on  his  omii  Ch.,  643;  S.  C,  15  Am.  L.  Reg.  N. 
property.  And  if  the  window  be  S.,  6,  and  note  with  exhaustive 
of  considerable  height,  the  expense  collection  of  American  cases.  See 
of  obstructing  it  might  be  equiv-  also  Hulley  v.  Security  T.  &  S.  D. 
alent,  or  nearly  so,  to  the  value  Co.,  5  Del.  Ch.,  578. 
of  the  unimproved  or  vacant  land  39  Sutphen  r.  Therkelson,  38  N. 
designed  to  be  protected.  The  J.  Eq.,  318.  As  to  the  right  to  a 
effects  and  legal  consequences  re-  preliminary  injunction  to  restrain 
suiting  from  the  user  of  a  way,  the  erection  of  a  building  in  such 
and  that  of  a  light,  are  so  essen-  manner  as  to  darken  plaintiff's 
tially  different,  we  do  not  perceive  windows  and  exclude  the  light,  in 
the  propriety  of  holding  that  the  violation  of  a  covenant  in  tha 
twenty  years  rule  which  is  appli-  conveyance  under  which  defend- 
cable  to  the  former  should  also  be  ant  derives  title,  until  the  ques- 
applied  to  the  latter."  And  the  tion  of  plaintiff's  right  may  be  de- 
court  refused  to  sustain  the  in-  termined,  see  Pope  r.  Bell,  35  N, 
junction.  J.  Eq.,  1. 


828  INJUNCTIONS.  [chap.  XIV. 

received  across  the  other  half  of  the  property,  afterward 
sever  the  ownership  by  the  exchange  of  deeds  and  it  ap- 
pears that  the  use  of  such  light  and  air  are  reasonably 
necessary  for  the  beneficial  enjoyment  of  the  property,  an 
easement  is  created  which  equity  will  protect  by  injunc- 
tion, and  the  owner  of  the  adjoining  land  may  therefore  be 
restrained  from  erecting  a  building  in  such  a  manner  as  to 
close  the  window  and  thus  deprive  plaintiff  of  his  ease- 
ment of  light  and  air."**^  So  where  plaintiff  owns  premises 
abutting  upon  a  private  way  or  alley,  which  has  never  been 
dedicated  to  the  public  and  which  belongs  in  equal  por- 
tions to  the  owners  of  the  adjacent  lots,  he  may  enjoin  de- 
fendant, an  adjacent  lot  owner,  from  erecting  a  fence  upon 
plaintiff's  side  of  the  alley  which  will  result  in  closing 
plaintiff's  windows  and  in  excluding  light  and  air  from  his 
premises.^i  So  the  owner  of  land  adjacent  to  a  canal 
which  is  a  public  highway  is  entitled  to  receive  from  it 
light  and  air,  and  equity  will  restrain  one  holding  under 
the  canal  company  from  erecting  a  building  over  the  canal 
in  such  manner  as  to  close  up  complainant's  windows  and 
deprive    him    of    the    free    enjoyment    of   this    right. •*- 

§  869.  Title  derived  from  common  source.  Where  both 
plaintiff  and  defendant  derive  title  to  adjacent  premises, 
from  a  common  source,  and  defendant  is  about  to  erect  a 
building  upon  his  vacant  premises  which  will  have  the 
effect  of  obstructing  many  of  plaintiff's  windows  in  a  build- 
ing construtced  by  the  original  grantor  of  both  parties, 
equity  will  not  interfere  by  injunction  in  the  absence  of 
any  covenant  in  the  grant  under  which  plaintiff'  claims  in- 
dicating an  intention  upon  the  part  of  the  grantor  to  limit 
the  use  of  the  vacant  lot  so  that  it  shall  not  impair  plain- 
tiff''s  light  and   air.^^ 

•»o  Greer  v.  Van  Meter,  54  N.  J.  -^^  Barnett  v.  Johnson.  2  McCart., 

Eq.,  270,  33  Atl.,  794.  481. 

"  Sankey  r.   St.   Mary's  Female  -"^  Shipman  v.  Beers,  2  Ab.  New 

Academy,  8  Mont.,  265,  21  Pac,  23.  Cas.,  435, 


€HAP.  XIV.]  PROTECTION    OF    EASEMENTS.  829 


III.   Easements  in  Water. 

5  870.     Easements  in  water  protected;   evidence;   licensee. 
870a.  Protection  to  mill  owners. 

871.  Easement  by  prescription  protected. 

872.  Doctrine  of  prescription  in  cases  of  mills. 

873.  Relief  in  behalf  of  mill  owners. 

874.  The  same. 

S15.  Detention  of  water  from  factory. 

576.  Underground  channels. 

S17.  Mining  ditch;  ditch  for  drainage;  drawing  off  water  from  nav- 
igable river. 

:878.  Supply  of  water  from  other  premises. 

879.  The  same. 

880.  Joinder  of  plaintiffs. 

881.  Illustrations  of  the  general  doctrine. 
•882.  Canal  company. 

883.     "When  injunction  denied. 

■884.     Effect  of  acquiescence  as  an  estoppel. 

.885.     The  same. 

§870.     Easements  in  water  protected;    evidence;    licensee. 

An  easement  or  servitude  in  water  is,  under  some  circum- 
stances, entitled  to  protection  in  equity,  and  an  injunction 
will  be  granted  in  a  proper  case.  Thus,  riparian  proprietors 
■of  a  private  stream,  entitled  to  the  use  and  enjoyment 
of  the  stream  without  diminution  or  alteration,  will  be 
protected  by  injunction  from  violation  of  their  right.^  And 
where  mills  are  situated  on  both  sides  of  the  stream,  if  the 

1  Society  v.  Low,  2  C.  B.  Green,  I.  &  S.   Co.,   13  Ore.,  496,  11  Pac, 

19;  Howe  v.  Norman,  13  R.  I.,  488;  255;     Earley's  Appeal,  121  Pa.  St., 

Brown    v.   Ashley,    16     Nev.,     311;  496,  15  Atl.,  602.     But  in  Michigan 

Bitting's  Appeal,  105  Pa.  St.,  517;  the  courts   have  manifested   a  re- 

Heilbron     v.    Canal    Co.,    75    Cal.,  luctance  to  interfere  by  injunction 

426,  17  Pac,  535.     See  also  Lux  v.  for    the     purpose     of     regulating 

Haggin,  69  Cal.,  255,  10  Pac,  674;  rights  or  easements  in  water,  un- 

Barneich  v.   Mercy,   136   Cal.,   205,  less    in   cases     of    an    intentional 

68  Pac,  589;    Proprietors  v.  Brain-  violation  of  the  right.     See  Hoxsie 

tree  W.  S.  Co.,  149  Mass.,  478,  21  v.  Hoxsie.  38  Mich.,  77;    Bradfield 

N.  E.,  761,  4  L.  R.  A.,  272;    Kay  v.  v.   Dewell,   48   Mich.,   9,  11  N.  W., 

Kirk,  76  Md.,  41,   24  Atl.,  326,  35  760. 
Am.  St.  Rep.,  408;  "Weiss  v.  Oregon 


S30  INJUNCTIONS.  [chap.  XIV. 

mill  owner  upon  one  side  attempts  to  deprive  the  other  of 
his  share  of  the  water,  a  preliminary  injunction  may  be 
granted,  since  the  injury  is  likely  to  prove  irreparable.-  So 
the  owner  of  lands  through  which  flows  a  non-navigable 
stream  may  restrain  defendant  from  floating  logs  down  the 
stream,  which  results  in  a  continuous  trespass  to  plaintiff's 
premises."  It  has  been  held,  however,  that  complainant  must 
first  establish  his  rights  at  law,  as  well  as  a  violation  of 
those  rights.^  And  where  only  a  casual  and  occasional  in- 
fringement of  the  right  is  shown,  as  by  defendant's  using 
more  than  his  share  of  water  for  mill  purposes,  no  suit  at 
law  having  been  brought  to  test  the  question  of  right, 
equity  will  withhold  its  interference,  on  the  ground  that  no 
mischief  is  likely  to  ensue  which  can  not  be  remedied  at 
law.^  The  evidence  upon  which  a  court  will  perpetuate  an 
injunction  in  this  class  of  cases  must  clearly  establish  the 
essential  allegations  of  the  bill,  the  burden  of  proof  being 
on  the  complainant.  And  where  the  evidence  consists  only 
of  the  opinions  of  witnesses,  there  being  great  contrariety 
of  opinion,  it  will  not  suffice  to  make  an  injunction  per- 
petual.'^ And  it  would  seem  that  a  mere  license,  not 
amounting  to  an  absolute  grant,  to  use  water  from  a  Avell 
upon  adjoining  premises  will  not  authorize  an  injunction 
at  the  suit  of  the  licensee  to  prevent  defendant  from  de- 
priving him  of  the  use  of  the  water.'^ 

§  870  a.  Protection  to  mill  owners.  Relief  by  injunction 
for  the  protection  of  easements  in  water  is  most  frequently 
invoked   in   behalf   of   mill   owners.     And   a   riparian   owner 

2  Arthur  v.  Case,  1  Paige,  447.  369.    This  was  a  case  where  a  pre- 

■"•  Haines  v.  Hall,  17  Ore.,  165,  20  liminary      injunction      had      been 

Pac,  831.  granted     to      restrain     defendants 

>  Bliss   V.   Kennedy,   43    111.,   67;  from  the  erection  of  a  mill  in  such 

Howell  Co.  r.  Pope  Glucose  Co.,  171  manner  as  to  deprive  complainant 

111.,   350,   49   N.   E.,   497.     But  see  of    sufficient   water    for    mill    pur- 

Pollitt  /•.  Long,  58  Barb.,  20.  poses. 

•'•  Norris  r.  Hill,  1  Mich.,  202.  f  Applegate  i\  Morse,  7  Lans.,  59. 

0  Woodruff  V.  Lockerby,   8  Wis., 


CHAP.  XIV.]  PROTECTION    OF    EASEMENTS.  831 

upon  a  navigable  stream,  having  a  right  to  the  natural  flow 
of  the  water  past  his  premises  for  mill  purposes,  may  re- 
strain its  unauthorized  obstruction  by  the  erection  of  a 
dam  in  such  manner  as  to  interfere  with  his  right.'^  So 
a  mill  owner,  who  is  entitled  by  grant  to  an  easement  in  a 
specified  quantity  of  water  flowing  over  defendants'  dam 
above,  may  restrain  defendants  from  removing  the  old  dam 
and  building  a  new  one  farther  up  the  stream  which  would 
have  the  efl'ect  of  depriving  plaintiff  of  the  quantity  of 
water  to  which  he  is  entitled.'^  And  a  purchaser  of  a  mill 
under  foreclosure  proceedings  may  restrain  the  former  owner 
from  interfering  with  the  dam  and  mill-race  to  the  injury 
of  the  mill,  when  they  constitute  the  sole  source  of  supply 
for  the  mill.^^  So  the  owner  of  a  mill  and  mill  pond  may 
enjoin  a  city  from  taking  water  for  the  supply  of  the  city 
from  such  pond,  either  directly  by  means  of  pipes,  or  in- 
directly by  means  of  a  well  dug  in  the  vicinity  of  the 
pond.ii  So  a  mill  owner  who  is  entitled  to  the  natural 
flow  of  water  from  a  stream  for  the  operation  of  his  mill 
may  restrain  its  diversion  by  a  riparian  owner  farther  up 
the  stream.^-  And  when  plaintiff  is  entitled  by  contract 
to  all  the  water  for  the  use  of  his  mills  which  flows  over 
defendant's  dam  and  which  is  not  used  by  defendant,  the 
latter  may  be  enjoined  from  opening  his  gates  and  letting 
the  water  run  to  waste.^^  And  when  plaintiff  is  entitled  to 
a  given  quantity  of  water  for  the  use  of  his  mill,  and  de- 
fendant operating  a  factory  upon  the  same  stream  is  en- 
titled to  the  water  subject  to  plaintiff's  r>rior  right,  de- 
fendant may  be  enjoined  from  interfering  with  such  right. ^^ 

s  Morrill  r.  Saint  Anthony  F.  W.  12  Higgins  v.  Flemington  W.  Co., 

P.  Co.,  26  Minn.,  222,  2  N.  W.,  842.  36  N.  J.  Eq.,  538. 

9  Matteson    v.    Wilbur,    11    R.    I.,  is  Fuller    i:    Daniels,    63    N.    H., 
545.  395. 

10  Curtis     V.    Norton,    58    Mich.,        i*  Mudge  v.  Salisbury,  110  N.  Y., 
411,  25  N.  W.,  327.  413,  18  N.  E.  249. 

11  City  of  Emporia  v.  Soden,  25 
Kan.,  588. 


!832  INJUNCTIONS.  [CHAP.  XIV. 

§  871.  Easement  by  prescription  protected.  An  easement 
in  water  may  be  acquired  by  prescription,  and  when  so 
.acquired  it  is  as  absolute  as  any  other  right,  and  equity  will 
restrain  its  violation  when  such  violation  is  productive  of 
■serious  injury.^  ^  Thus,  when  complainant  has  used  and  en- 
joyed a  stream  for  his  mill  during  a  period  of  sixty  years 
without  interruption,  defendants  owning  land  on  the  borders 
•of  the  stream  above  may  be  enjoined  from  materially  or  sen- 
sibly altering  or  diverting  the  stream  to  the  detriment  of 
complainant's  enjoyment.^ ^  So  acquiescence  for  twenty  years 
in  defendant's  adverse  use  of  water  which  had  previously 
:flowed  into  complainant's  mill  pond  will  prevent  the  ob- 
taining of  an  injunction.!'^  Nor  will  it  avail  complainant 
that  there  had  been  a  three  years'  reflow  of  the  water  into 
his  pond,  defendants  not  having  intended  to  abandon  their 
right  during  that  time.^^  But,  although  complainant  has 
heen  in  possession  twenty  years,  he  will  not  be  allowed, 
without  first  having  established  his  right  at  law,  to  restrain 
the  drawing  off  of  water  from  a  lake  supplying  his  mill  by 
means  of  a  subterranean  channel  created  five  years  before. ^^ 

§  872.  Doctrine  of  prescription  in  cases  of  mills.  The 
doctrine  of  prescription  is  perhaps  more  frequently  invoked 
in  aid  of  applications  for  the  preventive  aid  of  equity  in 
■cases  of  easements  in  water  for  mill  purposes  than  in  other 
cases  of  water  privileges.  And  when  plaintiff  has  been  in 
the    open,    uninterrupted    and    public    use    of   water    for    his 

15  Hulme  V.  Shreve,  3  Green  Ch.,  solved  so  far  as  it  restrained  de- 

116;    Matteson  v.  Wilbur,  11  R.  I.,  fendants  from   erecting  their  mill 

545;     Eckerson  v.   Crippen,  110  N.  on   their  own  land   and   using  the 

Y.,  585,  18  N.  E.,  443.  water  for  mill  purposes. 

icShreve  r.  Voorhees,    2    Green  i'^  Haight  i\  Morris  Aqueduct,  4 

Ch.,   25.     But   the   injunction  was  Wash.  C.  C.,  601. 

retained  only  so  far  as  was  neces-  i**  Id. 

sary  to  secure  complainant  in  the  lo  Reid   v.   Gifford,   6   John.   Ch., 

use  of  his  mill  as  he  had  before  en-  19.    But  see  Reid  t'.  Gifford,  Hopk. 

joyed   it,  without  any  material  or  Ch.,  416. 
sensible    alteration,    and   was  dis- 


CHAP.  XIV.]  PROTECTION    OF    EASEMENTS.  833 

mill  for  a  period  of  thirty-eight  years,  such  uninterrupted 
user  will  be  deemed  conclusive  evidence  of  his  right,  and 
will  warrant  an  injunction  against  the  erection  of  a  new 
dam  which  would  have  the  effect  of  destroying  his  water- 
power.-^  So  when  plaintiff'  has  been  in  the  uninterrupted 
use  and  enjoyment  of  a  water-course  for  more  than  twenty 
years  for  the  supply  of  his  mill,  and  a  tenant  of  lands  upon 
the  opposite  side  of  the  stream  seeks  to  prevent  him  by 
force  from  repairing  his  dam  so  as  to  prevent  a  diversion 
of  the  water,  an  injunction  is  proper  to  restrain  such  ten- 
ant from  interfering  with  plaintiff  in  making  the  repairs.^^ 
So,  too,  the  right  to  overflow  lands  by  the  erection  of  a 
mill-dam,  like  other  easements,  may  be  acquired  by  long 
and  adverse  enjoyment  for  a  period  exceeding  twenty  years. 
And  when  for  more  than  twenty-four  years  the  owners  of 
real  estate  which  is  overflowed  by  a  dam  have  acquiesced 
in  its  erection  and  maintenance,  and  have  during  such 
period  permitted  its  owner  to  make  large  expenditures 
without  objection,  they  will  not  be  permitted  to  enjoin  the 
rebuilding  of  a  portion  of  the  dam  which  has  been  de- 
stroyed.-- 

§  873.  Relief  in  behalf  of  mill  owners.  Since  the  pur- 
chase of  a  right  carries  with  it  of  necessity  all  the  inci- 
dents and  privileges  connected  with  the  right  and  essential 
to  its  enjoyment,  the  purchaser  of  land  on  which  stands 
the  abutment  of  a  mill-dam  is  entitled  to  the  same  use  of 
the  water  which  had  been  enjoyed  by  his  grantor,  and  a 
court  of  equity  may  enjoin  the  grantor  from  using  or  inter- 
fering with  the  water,  or  diverting  it  from  grantee's  mill.^^ 
And  as  between  parties  who  are  owners  in  severalty  of 
different  mills  situated  upon  the  same  mill-dam  and  having 
the   right  to   a   certain   portion   of  the   water   for   the   use   of 

20  Matteson   v.   Wilbur,    11    R.    I.  22  Vail  v.   Mix,  74   111.,  127. 
545.  23  Wall  r.  Cloud,  3  Humph.,  181; 

21  McSwiney  r.  Haynes,  1  Ir.  Eq.,  Cox  r.  Howell,  108  Tenn.,  130,  65 
322.  S.  W.,  868,  58  L.  R.  A.,  487. 

53 


834 


INJUNCTIONS. 


[chap.  XIV. 


their  respective  mills,  one  of  the  parties  may  be  enjoined 
from  drawing  off  a  portion  of  the  water  at  a  considerable 
distance  above  the  dam.  In  such  a  case  it  is  not  essential 
that  actual,  perceptible  damage  should  be  shown,  it  being 
sufficient  ground  for  equitable  relief  that  there  is  a  viola- 
tion of  the  right  by  diverting  the  stream  from  its  full 
and  natural  flow.  And  the  fact  that  defendant  is  entitled 
to  the  use  of  the  water  for  his  dam  below  does  not  author- 
ize him  to  impair  the  flow  of  the  stream  by  drawing  oft'  the 
water  at  a  higher  point.-^ 

§  874.  The  same.  The  authorities  already  cited  serve 
to  illustrate  the  extreme  liberalitj-  which  has  usually  char- 
acterized courts  of  equity   in   granting  preventive   relief  for 


24  Webb  V.  Portland  Manufactur- 
ing Co.,  3  Sumner,  189.  Story,  J., 
after  stating  that  in  actions  of  this 
nature,  it  is  not  necessary  to  shov\r 
actual,  perceptible  damage,  a  clear 
violation  of  the  right  being  shown, 
observes:  "But  if  the  doctrine 
were  otherwise,  and  no  action 
were  maintainable  at  law,  with- 
out proof  of  actual  damage,  that 
would  furnish  no  ground  why  a 
court  of  equity  should  not  inter- 
fere and  protect  such  a  right  from 
violation  and  invasion;  for,  in  a 
great  variety  of  cases,  the-  very 
ground  of  the  interposition  of  a 
court  of  equity  is,  that  the  injury 
done  is  irremediable  at  law,  and 
that  the  right  can  only  be  perma- 
nently preserved  or  perpetuated 
by  the  powers  of  a  court  of  equity. 
And  one  of  the  most  ordinary  proc- 
esses to  accomplish  this  end  is 
by  a  writ  of  injunction,  the  naturo 
and  efficacy  of  which  for  such 
purpose  I  need  not  state,  as  the 
elementary  treatises  fully  ex- 
pound   them.      If,   then,   the   diver- 


sion of  water  complained  of  in  the 
present  case  is  a  violation  of  the 
right  of  the  plaintiffs,  and  may 
permanently  injure  that  right,  and 
become,  by  lapse  of  time,  the  foun- 
dation of  an  adverse  right  in  th& 
defendant,  I  know  of  no  more  fit 
case  for  the  interposition  of  a 
court  of  equity,  by  way  of  injunc- 
tion, to  restrain  the  defendants 
from  such  an  injurious  act.  If 
there  be  a  remedy  for  the  plain- 
tiffs at  law  for  damages,  still  that 
remedy  is  inadequate  to  prevent 
and  redress  the  mischief.  If  there 
be  no  such  remedy  at  law,  then  a 
fortiori,  a  court  of  equity  ought  to 
give  its  aid  to  vindicate  and  per- 
petuate the  right  of  the  plaintiffs. 
A  court  of  equity  will  not  indeed 
entertain  a  bill  for  an  injunction 
in  case  of  a  mere  trespass  fully 
remediable  at  law.  But  if  it  might 
occasion  irreparable  mischief,  or 
permanent  injury,  or  destroy  a 
right,  that  is  the  appropriate  case, 
for  such  a  bill." 


CHAr.  XIV.]  PEOTECTION    OF    EASEMENTS.  835 

the  protection  of  mill  owners  in  their  easements  or  privileges 
in  the  use  of  water  for  supplying  their  mills.  As  still 
further  illustrating  this  tendency  it  is  held  that  \vhere  a 
mill  owTier  derives  his  title  from  the  grantors  of  defendants, 
and  by  the  terms  of  his  grant  he  is  entitled  to  a  sufficient 
quantity  of  water  from  defendants'  dam  for  the  use  of  his 
mill  and  works,  he  may  have  an  injunction  to  restrain  de- 
fendants from  depriving  him  of  the  quantity  of  water  to 
Avhich  he  is  entitled  under  his  grant.  But  in  such  a  case 
plaintiff  himself  may  be  enjoined  from  using  the  water  for 
the  purpose  of  running  additional  machinery  not  necessary 
to  the  use  of  his  mill  as  it  had  been  formerly  used.-^  And 
the  owner  of  a  mill  who  is  entitled  under  his  grant  to  the 
use  of  water  from  a  reservoir  erected  by  his  grantors,  may 
enjoin  a  subsequent  grantee  under  the  same  grantors  of 
the  land  covered  by  such  reservoir  from  destroying  it  and 
from  doing  any  act  wdiich  would  materially  diminish  the 
supply  of  water,  or  which  w^ould  interfere  with  its  flow  upon 
plaintiff's  premises.^^  So  the  owner  of  a  water-power 
created  by  a  dam  erected  in  improving  the  navigation  of  a 
river,  who  is  entitled  to  the  surplus  water  above  what  is 
required  for  purposes  of  navigation,  may  restrain  riparian 
proprietors  from  drawing  water  from  the  dam  without  au- 
thority.-'^ So  the  owner  of  a  mill  which  is  supplied  with 
W'ater  from  a  creek  may  enjoin  a  diversion  of  the  water 
from  such  creek  by  a  railway  company  conducting  the 
water  through  pipes  for  the  supply  of  its  engines,  when  such 
diversion  materially  diminishes  the  grinding  power  of  plain- 
tiff's  mill.28     And   the   extension   by   defendants   of   a   ditch 

2^  Comstock  V.  Johnson,  46  N.  Y.,  N.  W.,  529,  36  N.  W.,  828.  See  also 

615.    See  also  Valley  P.  &  P.  Co.  v.  Fox  River  F.  &  P.  Co.  v.  Kelley, 

West,  58  Wis.,  599,  17  N.  W.,  554.  70  Wis.,  287,  35  N.  W.,  744. 

26  Simmons  v.  Cloonan,  2  Lans.,        28  Garwood  v.  New  York  C.  &  H. 
346.  ,  R.  R.  Co.,  17  Hun,  356.    But  under 

27  Green  Bay  &  M.  C.  Co.  v.  Kau-  the  statutes  of  West  Virginia  it  is 
kauna  W.  P.  Co.,  70  Wis.,  635,  35  held,  that  where  one  has  granted 


836  INJUNCTIONS.  [chap.  XIV. 

in  such  manner  as  to  draw  off  the  waters  of  a  lake  at  high 
water,  the  lake  being  the  source  of  supply  for  plaintiff's 
mills,  affords  sufficient  ground  for  an  injunction  to  restrain 
such  extension  and  diversion  of  the  water.^'J  Where,  how- 
ever, plaintiff's  are  mill  owners  upon  a  basin  communicating 
with  a  public  canal,  but  without  title  or  prescriptive  right 
as  against  the  state,  they  will  not  be  permitted  to  enjoin 
the  canal  commissioners  of  the  state  from  closing  such  basin, 
even  though  the  privilege  of  which  they  are  thus  deprived  is 
of  great  value.^" 

§  875.  Detention  of  water  from  factory.  An  unreasonable 
use  or  detention  of  water  by  defendant  operating  a  saw- 
mill upon  a  stream  above  plaintiff"s  factory  affords  suf- 
ficient ground  for  an  injunction  as  a  violation  of  plaintiff' 's 
easement  in  the  stream.  And  when  defendant  so  operates 
his  mill  as  to  wholly  deprive  plaintiff'* of  water  for  the  use 
of  his  factory  for  several  of  the  working  hours  of  each  day, 
and  then  permits  the  water  to  flow  in  such  unusual  quantities 
that  plaintiff  can  only  use  a  small  portion  of  it,  thus  caus- 
ing constant  interruption  to  plaintiff's  factory,  an  injunction 
will  be  alio  wed. ■'^1 

§  876.  Underground  channels.  The  use  of  water  in  a  well 
upon  one's  own  premises  wall  not  be  restrained  because  it  is 
alleged  that  plaintiff'  is  thereby  deprived  of  water  in  his 
well  or  spring  upon  adjoining  premises,  when  it  is  not 
shown  how  he  is  thus  deprived,  the  channel,  if  any,  being 
underground,   or  the   result   of  percolation   through  the   soil. 

to  a  railway  company  the  right  to  pany,  and  no  averment  that  the 
construct  its  road  through  his  owner  can  not  be  adequately  corn- 
land,  and  afterward  seeks  to  en-  pensated  in  damages.  Chesapeake 
join  the  company  from  cutting  a  &  Ohio  R.  Co.  r.  Bobbett,  5  West 
channel  through  his  land  so  as  to  Va.,  138. 

divert  the  waters  of  a  creek  from  -"■'  Bennett       r.       Murtaugh,       20 

plaintiff's   mills   and   property,   an  Minn.,  151. 

injunction     will     not     be     allowed  -"  Burbank  v.  Fay,  5  Lans.,  397. 

when    the    hill    contains    no   aver-  -»  Pollitt  v.  Long,  5*?  Barb.,  20. 
raent  of  the  insolvency  of  the  com- 


CHAP.  XIV. J  niOTECTION     OF     EASEMENTS.  837 

The  law  of  surface  water  is  inapplicable  to  such  cases  and 
the  owner  is  entitled  to  the  advantages  of  his  own  land,  and 
can  not  know  that  the  water  supplying  his  well  percolates 
through  another's  land."-  And  a  distinction  is  drawn  be- 
tween cases  where  the  owner  of  lands  in  the  use  of  his  own 
premises  makes  excavations  which  result  in  draining  off  the 
water  from  plaintiff' 's  well  upon  adjacent  premises,  and 
cases  where  such  conduct  results  in  depriving  plaintiff'  of  the 
use  of  water  flowing  in  a  well  defined  channel  through  plain- 
tiff''s  premises;  and  while  in  the  former  class  of  cases  it 
is  held  that  such  excavations  may  be  properly  made,  in  the 
latter  equity  will  interfere  by  injunction.''^  If,  however, 
defendants  in  sinking  a  well  upon  their  own  premises  in- 
tercept a  subterranean  stream  w^hich  supplies  plaintiff's  land, 
they  may  be  restrained  from  so  operating  their  well  as  to 
deprive  plaintiff  of  his  supply  of  water,  the  quantity  of 
water  being  ample  for  both  parties  by  a  proper  adjustment 
of  pipes  in  defendant's  well.^^ 

§  877.  Mining  ditch ;  ditch  for  drainage ;  drav^ring  off 
water  from  navigable  river.  When  the  easement  consists 
in  the  right  to  the  use  of  water  flowing  through  a  ditch 
for  mining,  agricultural  and  other  purposes,  an  unauthorized 
diversion  of  the  water  may  be  prevented  by  injunction.^"' 
So  when  the  bill  avers  the  ownership  by  plaintiff's  of  a 
ditch  used  for  the  purpose  of  conveying  water  to>  their 
mining   claims,   and   that   they  have   been   in   its   actual   and 

■5^  Roath    V.    Driscoll,     20    Conn.,  Co.,   70   Ga.,   86;     Graham   c.    Dah- 
533;     Ocean  Grove   Camp   Meeting  lonega   G.    M.    Co.,     71     Ga.,     296; 
Association    (■.    Commissioners,    40  Moore  v.  Clear  Lake  Water  Works, 
N.  J.  Eq.,  447,  3  Atl.,  168;    Hougan  68  Cal.,  146,  8  Pac,  816;     Spargur 
V.   Milwaukee   &   St.   P.  R.   Co.,   35  v.  Heard,  90  Cal.,  221,  27  Pac,  198; 
Iowa.  558.  Mott  v.  Ewing,  90  Cal.,  231,  27  Pac. 
:iy  Grand   Junction   Canal   Co.    v.  194.     And  see  these  last  two  cases 
Shugar,  L.  R.  6  Ch.,  483.  as   to     the     necessity    of     proving 
34  Burroughs      v.      Saterlee,      67  damages      in       injunction       suits 
Iowa,  396,   25   N.  W.,  808.  brought  for  the  protection  of  ease- 
as  Imboden  v.  Etowah  &  B.  B.  M.  ments   in   water. 


838  ixjuxcTioxs.  [chap.  xiy. 

peaceable  possession  for  many  years,  using  it  for  mining 
purposes ;  that  at  the  time  the  ditch  was  located  the  land 
over  which  it  passes  was  vacant  and  unlocated,  and  that 
plaintiffs'  rights  in  the  premises  are  prior  and  paramount 
to  any  that  defendants  have  in  the  land  upon  the  line  of  the 
ditch,  which  averments  are  not  traversed  by  the  answer,  it 
-is  proper  to  enjoin  defendants  from  destroying  or  interfer- 
ing with  the  ditch.^*^  But  where  plaintiffs  are  the  owners  of 
a  ditch  used  for  mining  purposes  and  entitled  to  the  un- 
obstructed use  of  the  water  flowing  through  it,  and  seek 
to  enjoin  defendants  from  mining  operations  upon  the 
stream  above  plaintiffs'  ditch,  upon  the  ground  of  injury 
to  the  ditch  by  filling  it  with  sand  and  sediment,  an  in- 
junction will  be  refused  when  defendants  are  solvent  and 
able  to  respond  in  damages  at  law.^^  So  wher-e  plaintiffs, 
for  the  purpose  of  draining  a  pond  of  surface  water  upon 
their  laud,  had  dug  a  ditch  over  defendant's  lands,  under 
a  parol  license  from  defendant  which  he  afterward  revoked 
and  then  proceeded  to  fill  up  the  ditch,  it  was  held  that 
he  could  not  be  enjoined  from  so  doing  when  it  was 
not  shown  that  the  filling  of  the  ditch  would  interrupt  the 
natural  flow  of  the  surface  water  as  it  flowed  before  the 
ditch  was  dug;  and  that  plaintiffs  could  acquire  no  pre- 
scriptive right  to  the  use  of  the  easement  in  such  case,  since 
its  enjoyment  and  user  were  not  adverse,  but  permissive.^s 
And  it  has  been  held  that  the  drawing  off  of  water  from  a 
river,  to  such  an  extent  as  to  interfere  with  and  impede 
navigation,   affords  no   ground  for  an   injunction.^'-^ 

§  878.  Supply  of  water  from  other  premises.  One  who 
purchases  land  subject  to  the  burden  of  a  continuous  ease- 
ment, such  as  the  right  to  the  flow  of  water  therefrom  for 
the    supply    of   another's    house,    will    be    enjoined    from    de- 

3«  Gregory  t\  Nelson,  41  Cal.,  278.        •''>' Fryer  v.  Warne,  29  Wis.,  511. 
ST  Atchison  v.  Peterson,  1  Mont.,        "•»  Attorney  -  General     v.     Great 
561.  Eastern  R.  Co.,  L.  R.  6  Ch.,  572. 


CHAP.  XIV.]  PROTECTIOX    OF    EASEMENTS.  839 

priving  the  latter  of  the  benefit  of  the  easement  by  divert- 
ing the  flow  of  the  water  in  such  manner  as  to  deprive  his 
house  of  its  suppl}'.^*^  So  plaintiff,  having  an  easement  in 
the  flow  of  water  through  an  artificial  raceway  over  and 
upon  defendant's  premises,  may  enjoin  defendant  from  di- 
verting the  water  or  interfering  with  or  obstructing  its 
flow.^^  And  a  municipal  corporation,  which  is  authorized 
by  law  to  appropriate  water  from  a  private  stream  for  the 
use  of  the  municipality  and  which  has  constructed  works 
for  this  purpose,  may  restrain  the  obstruction  of  and  diver- 
sion of  the  water  from  the  stream.^^  And  where  plaintiff 
by  virtue  of  an  express  grant  has  an  easement  in  the  use 
of  water  as  conducted  from  defendant's  premises  for  manu- 
facturing purposes,  with  the  right  to  enter  upon  the  servient 
estate  to  construct  and  repair  the  necessary  pipes  and  con- 
nections for  supplying  the  water,  or  to  dig  other  springs 
and  construct  other  water-courses,  the  grantor  having  cov- 
enanted not  to  use  the  water  so  as  to  unnecessarily  inter- 
fere with  such  easement,  defendant  may  be  enjoined  from 
iinnecessary  and  useless  excavations  upon  his  own  premises 
which  result  in  diminishing  the  supply  of  water  for  plaintiff's 
manufactory.  In  such  case,  the  acts  of  defendant  being  in 
derogation  of  his  grant  and  in  violation  of  his  covenant,  and 
resulting  in  irreparable  injury  to  plaintiff,  an  injunction  is 
the  appropriate  remedy.^^  So  plaintiff,  having  an  easement 
implied  by  grant  from  the  defendant  in  the  flow  of  water 
from  a  stream  upon  defendant's  land,  which  is  essential  to 
the  full  enjoyment  of  the  estate  conveyed,  may  enjoin  de- 
fendant   from    interfering    with    the    continuous    flow    of   the 

40  De  Luze  r.  Bradbury,  10  C.  E.        *3  Johnstown  C.  M.  Co.  v.  Veghte, 

Green,  70.  69  N.  Y.,  16.     But  in  this  case  the 

•ti  Johnston  r.  Hyde,  33  N.  J.  Eq.,  grant  was  of  the  use  of  the  water 

632;     Fulton   r.   Greacen,  36  N.   J.  as  then  conducted  from  the  springs 

Eq.,  216.  and     streams     on     the     grantor's 

42  Haupt's  Appeal,  125    Pa.    St.,  lands. 
211,  17  Atl.,  436. 


840  INJUNCTIONS.  [chap.  XIV. 

water.*^  So  where  the  owner  of  premises  conveyed  them  by 
deed,  reserving  the  right  to  take  all  the  waste  water  running 
by  an  aqueduct  from  a  spring  into  a  tub  upon  the  prem- 
ises to  other  premises  owned  and  held  by  him,  and  reserv- 
ing also  the  right  to  dig  up  and  repair  the  aqueduct,  he 
was  allowed  to  enjoin  subsequent  grantees  from  obstructing 
him  in  his  easement,  and  from  interfering  with  or  inter- 
rupting him  while  repairing  the  aqueduct.^'^  Where,  how- 
ever, the  grant  is  only  of  the  right  to  use  and  lead  to  the 
grantee's  house  the  water  from  a  particular  spring  upon 
the  premises  of  his  grantor,  the  latter  will  not  be  enjoined 
from  digging  another  spring  upon  his  own  premises,  although 
it  may  injure  the  quality  and  reduce  the  quantity  of  -water 
supplied  to  the   grantee   from   the   former   spring.'*^ 

§  879.  The  same.  It  is  also  to  be  noticed  that  the  preven- 
tive relief  extended  by  courts  of  equity  in  cases  of  ease- 
ments in  water  is  not  confined  to  the  protection  of  the 
grantee  of  the  easement,  but  may  be  exercised  against  him 
for  the  purpose  of  restraining  an  undue  use  of  the  water  in 
excess  of  the  terms  of  his  easement.  And  where  defendant 
has  an  easement  or  grant  of  the  privilege  of  drawing  watei* 
from  a  spring  upon  plaintiff's  premises  through  a  pipe  of 
a  given  diameter,  he  may  be  enjoined  from  using  a  larger 
pipe  than  that  authorized  by  the  express  terms  of  the  grant.-*''' 
So  an  injunction  will  lie  to  prevent  a  lessee  of  a  specific 
quantity  of  water  from  using  the  water  in  excess  of  the 
amount  authorized  by  the  lease,  the  value  of  such  use  be- 
ing   difficult   of   ascertainment.^^ 

4t  Paine  v.  Chandler,  134  N.  Y.,  ••••Bliss  r.  Greeley,  45  N.  Y.,  67J. 

385,  32  N.  E.,  18,  19  L.  R.  A.,  99.  And   see  Trustees   r.   Youmans,  45 

4.-.  Hill    V.    Shorey,    42     Vt.,     614.  N.    Y.,    362,     affirming     S.    C,     50 

And    it   is   also   held   in   this   case  Barb.,  316;     Mosier  r.  Caldwell,  7 

that  plaintiff  is  entitled  to  a  decree  Nev.,  363. 

in  the  same  cause  for  the  damages  ■*'  Markham    r.   Stowe,  66   N.   Y., 

sustained  by  reason  of  the  wrong-  574. 

ful  interference  with  and  obstruc-  *«  Lawson  v.  Menasha  W.  W.  Co., 

tion  of  his  rights.  59  Wis.,  393,  18  N.  W.,  440. 


CHAP.  XIV.]  PROTECTIOX    OF    EASEMENTS.  841 

§880.  Joinder  of  plaintiffs.  As  regards  the  joinder  of 
parties  plaintiff  in  actions  of  this  nature,  it  is  held  that  own- 
ers in  severalty  of  different  tracts  or  premises  upon  a  mill 
stream,  who  are  operating  mills  thereon,  may  maintain  an 
action  to  restrain  the  improper  diversion  of  water  to  the 
injury  of  their  mills.  In  such  case,  although  the  titles  are 
different,  yet  the  injury,  being  a  common  one,  creates  such 
a  community  of  interest  as  to  entitle  them  to  join  in  the 
action.*^ 

§  881.  Illustrations  of  the  general  doctrine.  Although 
equity  will  restrain  the  use  of  water  to  the  injury  of  an 
easement  when  plaintiff's  right  is  clear  and  well  established, 
it  will  not  interfere  when  the  right  is  doubtful  and  the  facts 
are  not  definitely  ascertained.^®  So  to  warrant  an  injunc- 
tion against  obstructing  the  flow  of  Avater  for  a  mill,  the 
bill  must  show  such  obstruction  to  be  unlawful ;  and  mere 
general  allegations  that  defendant  has  obstructed  the  water 
of  the  stream,  thereby  preventing  complainant's  mill  from 
running,  and  that  he  will  continue  to  do  so,  will  not  suffice.^^ 
Nor  will  equity  interfere  to  settle  and  adjust  the  respec- 
tive rights  of  parties  to  the  use  of  water,  nor  to  determine 
how  much  each  one  is  entitled  to  use,  complainant  not  hav- 
ing established  definitely  what  his  rights  are.^-  And  an 
injunction  will  not  be  granted  when  the  right  has  not  been 
long  used  by  plaintiff,  or  established  at  law,  and  when  it  is 
in  controversy  between  the  parties.-'^-'' 

§  882.  Canal  company.  Where  one  is  entitled  to  a  water- 
power  supplied  from  a  public  canal,  he  can  not  by  his  OAvn 

*9  Reid     V.    GifEord,    Hopk.   Ch.,  -o  Roath   o.   Driscoll,    20    Conn.. 

416;     Emery  v.  Erskine,  66  Barb.,  533. 

9.     As  to  the  right    of    one  tenant  'ji  Patten  r.  Marden,  14  Wis.,  473. 

in  common  of  water  privileges  to  •'>2  Olmstead    v.   Loomis,   6   Barb., 

restrain  a  diversion  of  the  stream  152;     Howell   Co.   v.   Pope  Glucose 

see  Lyth  Creek  W.  Co.  v.   Perdad,  Co.,  171  111.,  350,  49  N.  E.,  497. 

65  Cal.,  447,  4  Pac,  426.  ■•■i  Perkins    r.    Foye,     60     N.     H. 

486. 


S42  INJUNCTIONS.  [chap.  XIV. 

acts  define  or  limit  the  right  of  the  canal  company  to  the  use 
of  the  water,  and  a  perpetiiaf  injunction  will  be  allowed 
against  such  an  attempt.^^  And  where  a  canal  company- 
is  entitled  to  all  the  waters  of  a  creek  with  which  to  supply 
its  canal,  it  will  not  be  enjoined  from  increasing  the  height 
•of  a  dam  which  it  has  erected  to  turn  the  water  into  its 
canal,  merely  because  a  mill  owner  below  the  dam  is  de- 
prived of  waj;er  for  his  mill  by  thus  increasing  the  height  of 
the  dam.'""'^ 

§  883.  When  injunction  denied.  Where  complainant,  hav- 
ing conveyed  his  mill  site,  has  no  use  for  the  water  him- 
self, but  seeks  an  injunction  evidently  as  a  means  of  com- 
pelling defendant  to  make  compensation  for  the  use  of  the 
water,  which  might  readily  be  had  in  an  action  at  law, 
the  relief  will  be  withheld.^*^  And  an  injunction  will  not  lie 
to  restrain  lessees  from  the  erection  of  works  whereby  water 
will  be  drawn  off  and  used  in  a  manner  different  from  that 
specified  in  the  lease.^" 

§  884.    Effect  of  acquiescence  as  an  estoppel.    One  who  has 

by  his  own  acts  consented  to  or  acquiesced  in  the  use  of 
water  in  a  particular  manner  will  be  estopped  from  after- 
ward enjoining  its  use  in  that  manner.  Thus,  where  com- 
plainant without  objection  has  stood  bj^  and  allowed  de- 
fendant to  erect  a  mill  in  violation  of  the  terms  of  his  grant 
to  defendant  of  the  right  to  use  the  water  in  a  particular 
manner,  he  is  by  his  silence  debarred  from  any  relief  against 
such  diversion  of  the  water."'^  And  where  defendants,  rely- 
ing upon  a  verbal  assurance  that  they  would  be  allowed  to 

■'iETie  Canal  Co.   r.  Walker,   29  ss  Jacox  v.  Clark,  Walk.  (Mich), 

Pa.  St.,  170.  249.     But  see  as  to  the  distinction 

•'•''  Spangler's  Appeal,  64  Pa.  St.,  between    laches    and    acquiescence 

387.  as  affecting  the  right  of  a  riparian 

r.c,  W'arne  v.  Morris  C.  &  B.  Co.,  1  owner  to  protection  by  injunction 

Halst.  Ch.,  410.  in  the  flow  of  water  to  which  he 

•'■'  Society  v.  Butler,  1  Beas.,  499,  is  entitled,  Lux  v.  Haggin,  69  Cal., 

reversing  S.  C,  lb.,  204.  255,  10  Pac,  674. 


CHAP.  XIY.]  PROTECTION    OF    EASEMENTS.  843 

•draw  water  for  a  mill  from  a  lake  whose  outlet  ran  through 
complainant's  land,  have  erected  their  mill  without  objection 
from  complainant,  he  will  not  be  allowed  to  enjoin  the 
taking  of  water  from  the  lake  for  the  use  of  such  mill.-^^  So 
where  one  has  permitted  the  use  of  water  in  a  certain  man- 
ner for  twenty  years,  and  has  received  compensation  for 
such  use,  he  will  be  estopped  from  relief  by  injunction.^"' 
Nor  in  such  ease  is  the  insolvency  of  the  defendant  a  suffic- 
ient cause  for  the  interposition  of  equity,  since  insolvency, 
although  often  influencing  the  court,  does  not  of  itself 
authorize  the  injunction.*'^  So  plaintiff's  acquiescence  for  a 
period  of  seven  years  in  the  diversion  of  water,  to  the 
use  of  which  he  is  entitled,  has  been  held  a  sufficient  bar  to 
relief  b}'  injunction.*'-  And  property  owners  upon  a  stream 
used  for  rafting  logs,  who  have  for  a  long  series  of  years 
acquiesced  in  the  maintenance  of  certain  booms  in  the  stream 
by  a  defendant  corporation  which  has  invested  large  sums  of 
money  in  its  enterprise,  will  not  be  permitted  to  enjoin  the 
maintenance  and  operation  of  such  booms. ^^ 

§  885,  The  same.  Upon  similar  principles  it  is  held  that 
long  acquiescence  on  the  part  of  the  proprietors  of  a  water- 
power  in  a  certain  measurement  of  water  to.  which  defend- 
ants are  entitled  will  preclude  the  proprietors  from  obtain- 
ing relief  by  injunction  against  such  measurement  or  use  of 
the  water,  especially  where  erections  have  been  made  by 
defendants  at  considerable  expense,  which  would  be  almost  a 
total  loss  in  case  the  injunction  should  be  granted.*'*  So  ac- 
quiescence on  the  part  of  plaintiffs  in  the  deprivation  of 
water,  which  they  afterward  seek  to  enjoin,  may  estop  them 
from    obtaining    relief    in    equity.      Thus,    where    defendants 

59  Payne  c.  Paddock,  Walk.  ^^  Pennsylvania  R.  Co.'s  Appeal, 
{Mich.),   487.  125  Pa.  St..  189,  17  Atl.,  478. 

60  Heilman  r.  Union  Canal  Co.,  «"  Power's  Appeal,  125  Pa.  St., 
37  Pa.   St.,  100.  175,  17  Atl.,  254. 

61  Heilman  r.  Union  Canal  Co.,  «*  Blanchard  v.  Doering,  23  Wis., 
37  Pa.  St.,  100.   And  see,  ante,  §  18.  200. 


844  INJUNCTIONS.  [chap.  XIV. 

were  entitled  by  an  act  of  parliament  to  nse  water  from 
plaintiffs'  canal  for  a  particular  purpose,  but  for  no  other, 
and  they  had  been  for  many  years  permitted  by  plaintiffs 
to  use  the  water  for  other  purposes,  and  plaintiffs  then  sought 
to  enjoin  such  use,  an  interlocutory  injunction  was  refused, 
even  though  plaintiff's  had  established  their  right  by  an 
action  and  judgment  at  law.^^  And  when  it  is  sought  to 
enjoin  defendants  from  keeping  their  dam  closed  in  such 
manner  as  to  prevent  the  flow  of  water  to  plaintiff's  mill, 
but  plaintiff'  has  delaj^ed  proceedings  for  a  period  of  more 
than  three  years  after  the  erection  of  the  dam,  he  will  not 
be  allowed  an  injunction.  And  the  fact  that  the  damages 
sustained  may  be  recoverable  at  law  aff'ords  additional 
ground  for  refusing  equitable  relief  in  such  case.^^  So  when 
the  owner  of  mills  and  of  a  water-power,  with  full  know- 
ledge of  the  facts,  has  long  acquiesced  in  the  diversion  of 
water  from  the  stream  for  the  use  of  a  city,  an  injunction 
may  be  properlj'  refused.*^"  And  where  a  mill  owner,  claim- 
ing the  right  to  the  unobstructed  flow  of  the  water  of  a 
river,  has,  by  his  unreasonable  delay  in  the  assertion  of  his 
rights,  made  it  impossible  or  very  difficult  for  the  court  to 
enjoin  the  diversion  of  the  water  without  causing  great  in- 
jury to  the  defendant  and  to  the  public  at  large,  relief  by 
injunction  will  be  denied  and  the  plaintiff  will  be  left  to  his 
remedy  at  law.''"'^ 

«5  Rochdale    Canal    Co.    r.    King.        "s  Flsk   v.   City   of   Hartford,    70 
2  Sim.  N.  S.,  78.  Conn.,  720,  40  Atl.,  906,  66  Am.  St. 

«6  Varney  v.  Pope,  60  Me.,  192.         Rep.,  147. 

<•'-!  City  of  Logansport  v.  Uhl,  99 
Ind.,  531. 


CHAP.  XIV.]  PROTECTION    OF    EASEMENTS.  845 


IV.  Rights  of  Way. 

§  886.  Governing  principles. 

887.  Action  at   law  to  determine   right. 

888.  Right  by  prescription  protected;    right  must  be  clear. 

889.  Verbal  license. 

890.  Right  of  way  to  stable. 

891.  Representations  of  grantor  as  an  estoppel. 

892.  Right  of  way  in  alley. 

893.  Access  to  lot  in  cemetery. 

894.  Purchaser  with  notice  bound;  establishing  boundaries  by  agree- 

ment;   obstruction  to   tow-path. 

895.  Relief  against  heirs  of  grantor;    non-user. 

896.  Mandatory  injunction. 

896a.  Obstruction  to  passage  way  under  railroad. 
896&.  Right  of  passage  through  rooms;  stairway. 
896c.  Easement  arising  from  sale  with  reference  to  plat. 

§  886.  Governing-  principles.  Equity  will  protect  the  enjoy- 
ment of  a  right  of  way  over  a  street,  alley  or  road  by 
restraining  the  erection  of  obstructions  thereon,  the  inter- 
ference being  based  upon  the  irreparable  injury  to  the  per- 
son aggrieved,  and  the  inadequacy  of  the  remedy  at  law.* 
But  the  facts  showing  such  irreparable  injury  must  be 
stated  in  the  bill,  and  mere  allegations  will  not  suf- 
fice.- Where,  however,  complainant  alleges  a  prescriptive 
right  of  way  over  defendant's  land  to  a  public  road  and  to  a 
market,  and  that  he  has  no  other  means  of  outlet  except  a 
circuitous  and  inconvenient  route,  he  makes  out  a  sufficient 

1  Roman  v.  Strauss,  10  Md.,  89;  W.,  740;    Cihak  v.  Klekr,   117   111., 

McConnell    v.    Rathbun,    46    Mich.,  643,  7  N.  E.,  Ill;    Newell  v.  Sass, 

303,    9     N.    W.,     426;      French    v.  142  111.,  104,  31  N.  E.,  176;    Smith 

Smith,    40   N.    J.    Eq.,   361,   3   Atl.,  v.   Young,    160   111.,   163,   43   N.   E., 

130;    Nicholls   v.    Wentworth,    100  486;   Lowery  r.  City  of  Pekin,  186 

N.  Y.,  455,  3  N.  E.,  482;    Avery  v.  111.,  387,  57  N.  E..  1062,  51  L.  R.  A., 

N.  Y.  C.  &  H.  R.  R.  Co.,  106  N.  Y.,  301. 

142,  12  N.  E.,  619;    Gorton  v.  Tif-         ^  Roman   v.   Strauss,  10  Md.,  89. 

fany,  14  R.  I.,  95;    Chance  v.  East  And    see   Amelung    v.    Seekamp,   9 

Texas    R.    Co.,    63    Tex.,    152;     De-  Gill  &  J.,  468. 
vore   V.  Ellis,  62   Iowa,  505.   17  N. 


846  INJUNCTIONS.  [chap.  XIV. 

ease  of  irreparable  mischief  to  entitle  him  to  a  injunction.^ 
So  a  private  way  of  necessity  over  defendant's  land,  implied 
by  grant,  as  the  only  means  of  connection  between  plaintiff's 
land  and  a  public  highway  will  be  protected  by  injunction.'* 
So  the  relief  will  be  allowed  for  the  protection  of  a  right 
of  way  created  by  express  grant.^  So  an  easement  in  a  pri- 
vate alley,  created  by  mutual  covenants  in  the  deeds  by 
w^hich  the  co-owners  of  land  have  divided  it  in  severalty,  is 
entitled  to  protection  by  injunction  in  behalf  of  one  co-owner 
against  those  claiming  under  the  other.^  And  a  court  of 
equity  having  jurisdiction  over  the  parties  may  enjoin  a 
defendant  from  interference  with  an  easement  or  right  of 
way  belonging  to  plaintiff',  although  the  property  in  ques- 
tion is  situated  in  another  state.'^  And  upon  a  bill  by  a 
vendee  of  lands  for  a  specific  performance  of  an  agreement 
by  the  vendor  to  convey  a  right  of  way  leading  to  the  lands, 
in  question  over  other  lands  of  the  vendor,  it  is  proper  t» 
enjoin  the  latter  from  obstructing  the  right  of  way,  plain- 
tiff's right  to  a  specific  performance  being  clearly  shown.^ 
And  in  order  to  entitle  the  plaintiff'  to  relief,  it  is  not  neces- 
sary that  the  easement  or  right  of  way  should  be  absolutely 
essential  to  the  enjoyment  of  the  estate  but  it  is  enough  if 
the  right  claimed  is  highly  beneficial.'-^  A  clear  and  un- 
doubted right  should  be  shown  to  warrant  the  exercise  of  the 
jurisdiction,  and  if  the  right  be  doubtful  a  decree  will  be 
withheld   until   it   is   established   at   law.^'^      Even   though   the 

3  Shipley  r.  Caples,  17  Md.,  179.  "Alexander     v.     Tolleston    Club, 

•*Jay  V.  Michael,  92  Md.,  198,  48  110  111.,  65. 

Atl.,  61.  s  Russell  i\  Napier,  SO  Ga.,  77,  I 

■'  Herman  v.  Roberts,  119  N.  Y.,  S.  E.,  857. 

37,  23  N.  E.,  442,  7  L.  R.  A.,  226,  •■>  Cihak    r.    Klekr,    117    111.,    643.. 

16  Am.  St.  Rep.,  801.    And  see  this  7  N.  E.,  Ill;    Newell  v.  Sass,  142 

case  as  to  the  form  of  the  injuno-  111.,   104,   31   N.  E.,  176;     Smith   c. 

tion.  Young,  160  111.,  163,  43  N.  E.,  486. 

'i  Yeager     ;;.     Manning,    183    111.,  i"  King   r.    McCully,   38   Pa.    St., 

275,  55  N.  E.,  691.  76;     Wakeman  v.  New  York,  L.  E. 

&  W.  R.  Co.,  35  N.  J.  Eq.,  496. 


CHAP,  XIV. J  PROTECTION    OF    EASEMENTS.  847 

right  of  way  be  admitted  and  its  obstruction  be  also  ad- 
mitted, the  court  will  not  therefore  interfere  to  restrain  such 
obstruction,  but  may  in  its  discretion  refuse  the  relief. ^i  Nor 
will  the  court  interfere  when  the  proof  is  so  indefinite  that 
the  right  of  way  claimed  can  not  be  accurately  determined.^  2 
Nor  will  the  relief  be  granted  where  the  right  of  way  in 
which  the  easement  is  claimed  is  of  no  practical  value  to  the 
plaintiff,  and  in  such  case  he  will  be  left  to  the  pursuit  of  his 
remedy  at  law  for  the  vindication  of  his  naked  legal  rights.^ ^ 
And  in  any  event,  the  injunction,  when  granted,  should  be 
merely  co-extensive  with  the  duration  of  the  easement 
claimed,  and  should  not  be  perpetual  unless  the  easement 
itself  is  so.i"^ 

§  887.  Action  at  law  to  determine  right.  By  analogy  to^ 
the  rule  that  equity  will  not  interfere  to.  restrain  a  tres- 
pass pending  a  trial  at  law  to  determine  the  right,  where 
no  irreparable  injury  is  shown,  in  the  absence  of  such  injury 
it  will  not  enjoin  an  obstruction  of  a  right  of  way  pending- 
an  action  at  law  to  determine  the  right.^^  And  in  such  case 
the  mere  allegation  in  the  bill  of  irremediable  damage  will 
not  suffice,  but  the  facts  must  appear  which  show  that  the 
apprehension  of  such  injury  is  well  founded.^*^  And  when 
a  statute  forbids  the  granting  of  injunctions  against  the 
erection  or  use  of  public  works  until  the  question  of  damages 
has  been  decided  by  a  court  of  common  law,  an  injunction 
will  not  be  allowed  a  claimant  of  a  right  of  way  over  land 
regularly  appropriated  by  a  city  for  public  purposes,  where 
no  proceedings  at  law  have  been  instituted.!'^  But  when 
there  is  no  reasonable  doubt  of  plaintiff's  legal  title,  and  the 

11  Clack  V.  White,   2   Swan,  540.         i*  Yeager    v.    Manning,    183    111., 

12  Fox   V.    Pierce,   50   Mich.,    500,     275,  55  N.  E.,  691. 

15  N.  W.,  880.  1"'  Amelung  v.  Seekamp,  9  Gill  & 

13  Seeger  v.  Mueller,  133  111.,  86,     J.,  468. 
24   N.   E.,   513;     Gulick  x\   Fisher,         i«  Id. 

92  Md.,  353,  48  Atl.,  376.  1^  Wolbert     v.     Philadelphia,    4S 

Pa.  St.,  439. 


848  INJUNCTIONS.  [chap.  XIV. 

obstruction  to  the  right  of  way  is  clear,  it  is  proper  to 
enjoin  in  the  first  instance,  without  requiring  plaintiff  to 
establish  his  right  in  an  action  at  law.^^ 

§  888.  Right  by  prescription  protected ;  right  must  be  clear. 
A  right  of  way  may  be  acquired  by  prescription  which  will 
be  protected  in  equity.^'-'  And  a  bill  alleging  a  right  of  way 
over  adjacent  premises  confirmed  by  forty  years'  use,  and 
which  defendants  have  obstructed  and  destroyed,  contains 
sufficient  equity  to  warrant  an  injunction.  The  injury  in 
such  case  is  considered  as  not  susceptible  of  reparation  in 
damages,  and  one  whose  continuance  must  work  a  constantly 
recurring  grievance,  as  well  as  an  interruption  to  the  quiet 
and  long  continued  enjoyment  of  the  easement  annexed  to 
complainant's  private  estate.^o  But  to  justify  relief,  the 
plaintiff' 's  right  must  be  clear,  and  in  the  absence  of  satis- 
factory proof  that  the  user  by  the  plaintiff'  was  adverse,  the 
injunction  should  be  denied.-^ 

§  889.  Verbal  license.  Where  the  owner  of  land  has  given 
verbal  permission  for  the  construction  of  a  road  or  right  of 
way  through  a  portion  of  his  premises,  the  grantee  of  such 
privilege  or  easement  will  not  be  restrained  from  exercising 
it  merely  because  the  owner  of  the  premises  has  changed  his 
mind  and  desires  to  revoke  the  privilege. -- 

§  890.  Right  of  way  to  stable.  The  owner  of  an  inn,  hav- 
ing a  right  of  way  to  his  stable  in  the  rear,  over  the  land  of 
an  adjacent  owner,  may  have  the  aid  of  equity  to  restrain 
defendants  from  ])locking  up  or  obstructing  such  right  of 
way.  And  the  fact  that  the  obstruction  is  caused  by  several 
persons,  and  that  the  amount  or  degree  of  obstruction  caused 
by    each,    individually,    may    not    of    itself    afford    ground    of 

i«Mulville  V.  Fallon,  I.  R.  6  Eq.,  West  Va.,  282,  21  S.  E.,  1020. 

458.  20  Webber  v.  Gage,  39  N.  H.,  182. 

1"  Shipley  v.  Caples,  17  Md.,  179;  21  Gulick  v.  Fisher.  92  Md.,  Z5^. 

Webber   v.   Gage.     39   N.   H..    182;  48  Atl.,  376. 

Sheeks  r.  Erwin.   130    Ind..  31,   29  2l' Lexington  &  O.  R.  Co.  r.  Orms- 

N.   E.,   11;     Boyd  r.   Woolwine,   40  by.  7  Dana,  27G. 


CIIAl'.  XIV.]  I'KOTIX'TIOX     OF     KASKM  KNTS.  849 

complaint,  will  not  previ-nt  the  relief  as  ayainst  the  obstruc- 
tion caused  by  all.--"* 

§  891.  Representations  of  grantor  as  an  estoppel.  It  may 
also  happen  that  a  vendor  of  real  property  is  estopped  by  his 
own  representations  or  acts  from  obstructing  an  easement 
or  right  of  way  enjoyed  by  his  vendee,  and  such  estoppel 
may  constitute  sufficient  ground  for  relief  by  injunction.  For 
example,  when  the  owner  of  two  adjoining  lots  sells  one  of 
them,  representing  to  his  vendee  that  there  is  an  alley  be- 
tween them,  the  joint  use  of  which  will  be  conveyed  with 
the  lot  sold,  and  the  vendee  pays  an  increased  price,  relying 
upon  such  representation,  the  grantor  may  be  enjoined  from 
obstructing  such  alley,  although  it  is  not  mentioned  in  the 
conveyance.-^  So  when  the  vendor  of  a  lot  agrees  by  parol 
that  an  adjoining  strip  of  land  upon  his  own  premises  shall 
be  opened  as  a  street  for  the  use  of  the  grantee  and  the 
public,  and  the  street  is  so  opened  and  used  for  several  years, 
an  easement  exists  in  favor  of  the  purchaser,  and  his  grantee 
may  enjoin  the  vendor  from  obstructing  and  closing  up  the 
street.--''  And  where  plaintiif's  have  bought  lots  from  defend- 
ant adjoining  a  park  which  was  laid  out  and  dedicated  by 
defendant,  plaintiffs  having  a  perpetual  easement  in  and 
right  of  way  over  the  park  may  enjoin  defendant  from  de- 
stroying the  trees  and  shrubbery  in  such  park  and  from  lay- 
ing it  out  in  building  lots  and  selling  them.-^ 

§  892.  Right  of  way  in  alley.  Where  plaintiffs  own  real 
estate  in  a  city,  adjacent  to  an  alley  over  which  they  have 
an  easement  or  right  of  way,  the  alley  being  the  only  means 
of  access  to  the  rear  of  their  lots  except  through  their  dwell- 
ings, and  defendant,  claiming  title  to  the  premises  under  de- 
fective and  void  tax  sales,  is  about  to  erect  a  building  upon 

^3  Thorpe    v.    Brumfitt,    L.    R.    8  ■^■'  Newman   v.    Nellis,    97    N.    Y., 

Ch.,  650.  285. 

^*  Kirkpatrick  v.  Brown,  59  Ga.,  ^«  Morris  v.  Sea  Girt  L.  I.  Co.,  38 

450.  N.   J.  Eq.,  304. 
54 


850  INJUNCTIONS.  [chap,  XIV. 

the  alley,  it  is  proper  to  grant  an  injunction  restraining  such 
erection  upon  condition  of  payment  by  ,plaintiffs  to  defend- 
ant of  the  amount  actually  paid  by  him  for  the  tax  titles, 
with  legal  interest.^^  So  the  obstruction  of  plaintiff's  right 
of  way  in  an  alley  may  be  enjoined  when  such  obstruction 
deprives  him  of  the  use  of  the  alley  and  thereby  materially 
lessens  the  value  of  his  property.^s  And  in  such  case,  the 
fact  that  plaintiff  has  previously  made  some  encroachments 
upon  the  alley  will  not  estop  him  from  relief  in  equity.-** 
Where,  however,  the  encroachment  upon  plaintiff' 's  right  of 
way  in  an  alley  between  his  premises  and  those  of  defendant 
is  very  slight  and  will  not  seriously  interfere  with  or  impair 
the  right  of  way,  the  court  may  properly  regard  the  relief 
sought  as  disproportioned  to  the  injury  complained  of,  and 
may,  therefore,  decline  to  interfere.^^.  Nor  will  defendants 
be  enjoined  from  building  upon  their  own  premises  in  such 
manner  as  to  obstruct  an  easement  or  use  of  an  alley  claimed 
by  plaintiff,  when  defendants  have  bought  without  notice,, 
either  actual  or  constructive,  of  such  easement.^^ 

§  893.  Access  to  lot  in  cemetery.  The  owner  of  a  lot  pur- 
chased for  burial  purposes  in  a  cemetery,  who  has  made  his 
purchase  with  reference  to  certain  avenues  and  streets  as. 
platted,  is  entitled  to  the  aid  of  an  injunction  to  prevent 
the  obstruction  of  an  avenue  leading  to  his  lot  by  the  erec- 
tion   of   tombs   and    monuments   therein.      And    the   relief   is. 

2-  Kean  v.  Asch,  12  C.  E.  Green,  Smith    r.   Young,   160    111.,   163,   43 

57.     As  to  the  right  of  the  owner  N.    E.,    486;     Yeager    v.    Manning, 

of   a   house    abutting   upon    a  pri-  183  111.,  275,  55  N.  E.,  691. 

vate  alley,  having  an  easement  or  -^  Schaidt  r.  Blaul,  66  Md.,  141, 

right  of  passage   therein  appurte-  6  Atl.,  669.     And  see  this  case  as 

nant   to   his   premises,   to   restrain  to    the    effect   of   plaintiff's   acqui- 

its    obstruction,     see     Stallard    v.  escence  upon  his  right  to  relief  in 

Gushing,  76  Cal.,  472,  18  Pac,  427.  equity. 

2>*  Schaidt  v.  Blaul,  66  Md.,  141,  ■■"  Hall  r.  Rood,  40  Mich.,  46. 

6    Atl.,   669;     Cihak    v.   Klekr,   117  ••'•i  Kicklighter    o.    Rosenthal,     74 

111.,   643,   7   N.   E.,   Ill;     Newell  v.  Ga.,  151. 
Sass,   142   111.,  104,  31   N.  E.,  176; 


CHAP.  XIV.]  PKOTECTION    OF    EASEMENTS.  851 

proper  in  such  a  case,  whether  plaintiff  be  regarded  as  hav- 
ing an  absolute  title,  or  only  a  servitude. ^- 

§  894.  Purchaser  with  notice  bound ;  establishing  boundaries 
by  agreement;  obstruction  to  tow-path.  Equity  may  properly 
enjoin  an  obstruction  to  a  right  of  way  over  real  property 
as  against  a  subsequent  purchaser,  although  the  instrument 
granting  the  right  be  not  recorded,  provided  such  purchaser 
acquired  his  title  with  full  knowledge  of  the  easement.^^  So 
purchasers,  who  buy  with  full  notice  of  an  easement  or  right  of 
way  may  be  enjoined  from  obstructing  such  right,  even  though 
it  rests  only  in  parol,  it  having  been  accepted  and  acted  upon 
and  money  having  been  expended  in  improving  it  by  the 
licensee  acting  in  good  faith.^^  And  relief  may  be  granted 
against  a  subsequent  purchaser  w^ho  is  chargeable  with  notice 
of  the  record  of  the  instrument  creating  the  easement,  al- 
though no  reference  is  made  to  the  covenant  in  the  mesne 
conveyances.^^  And  when  one  purchases  lots  fronting  upon 
a  private  way  or  street,  with  the  right  of  way  thereon,  sub- 
ject to  a  like  right  in  the  grantor,  the  latter  may  be  enjoined 
from  cutting  down  the  grade  of  the  street  to  the  injury  of 
the  grantor.^^  So  the  owners  of  adjacent  wharves  having 
covenanted  that  an  intervening  dock  should  be  kept  open  as 
a  common  passage  way,  without  obstruction  or  impediment, 
the  lessees  of  one  of  such  wharves  may  be  restrained  from 
violating  the  covenant  by  permitting  vessels  to  lie  at  their 
dock  in  such  manner  as  to  project  into  the  common  passage 
way.2"  So  where  the  owners  of  adjoining  lands,  by  mutual 
agreement,  definitely  establish  the  boundaries  of  a  private 
way  which  had  been  previously  located  along  their  line,  and 
appropriate  the  strip  of  land  between  such  boundaries  to  be 

32  Burke  r.  Wall,  29  La.  An.,  38.  36  Kelley  r.  Saltmarsh,  146  Mass., 

33  McCann  r.  Day,  57  111.,  101.  585,  16  N.  E.,  460. 

34  Simons  v.  Morehouse,  88  Ind.,  37  cdmmercial  Wharf  Co.  v.  Win- 
391-  sor,  146  Mass.,  559,  16  N.  E.,  560. 

35Yeager  v.   Manning,    183     111., 
275,  55  N.  E.,  691. 


852  INJUNCTIONS.  [chat.  XIV. 

used  for  the  mutual  benefit  of  the  abutting  property,  and, 
in  pursuance  of  the  agreement,  afterward  erect  fences  along 
the  boundaries  so  agreed  upon  and  thereafter  use  the  strip 
as  a  private  way,  an  easement  in  such  strip  is  thereby 
created,  the  obstruction  of  which  by  a  purchaser  with  notice 
from  one  of  the  original  owners  may  be  enjoined  by  a  pur- 
chaser from  the  other  owner.^^  And  an  obstruction  to  a 
towing-path  along  a  private  canal,  to  which  plaintiff  is  en- 
titled,  may   be   enjoined.^'* 

§895.  Relief  against  heirs  of  grantor;  non-user.  When 
one  conveys  real  property  reserving  to  his  grantee  a  right 
of  passage  over  the  grantor's  premises  for  the  purpose  of 
carrying  away  filth  from  the  premises  conveyed,  the  grantee 
is  entitled  to  an  injunction  against  the  heirs  of  his  grantor 
to  restrain  them  from  obstructing  the  passage. ^^  And  equity 
will  protect  a  right  of  way  by  injunction  although  there 
may  have  been  for  a  period  of  many  years  a  non-user  of 
the  right,  if  plaintiff  had  resumed  it  before  the  doing  of 
the  acts  complained  of  as  an  obstruction  to  the  easement. +^ 

§  896.  Mandatory  injunction.  Where  defendant  had  per- 
sisted in  erecting  an  obstruction  to  plaintift"s  right  of  way 
after  full  notice  of  the  right  and  after  suit  begun  for  an 
injunction,  and  the  court  upon  the  hearing  found  plaintiff' 
entitled  to  the  injunction,  it  was  made  mandatory  and  de- 
fendant was  ordered  to  remove  within  a  given  time  the  erec- 
tions made  since  the  commencement  of  the  suit;  and  this, 
even  under  a  statute  authorizing  the  court  in  its  discretion 
to  award  pecuniary  damages  to  the  person  injured  in  lieu 
of  an  injunction.-*-  And  a  right  of  way  over  defendant's 
land  arising  by  prescrii)tion  may  be  protected  by  mandatory 
injunction  rcciuii'ing  the  removal  of  the  obstruction  com- 
plained   of.*^ 

s«  Shields  v.  Titus,  46  Ohio  St..  ■»' Cook  r.  Mayor.  T...  R.  6  Eq., 
r,28.   22  N.   E.,  717.  177. 

•■'•!•  Selby     r.     Nettlefold,    L.    R.    '.»  '-' Krehl  r.  Burrell,  7  Ch.  D.,  551. 

(^h     111         '  '  ■•  Boyd    r.    Wool  wine,     40     West 

•  ''Kraut's  Appeal,  71   Pa.  St..  t;t.     Va.,  282,  21   S.  E..  1020 


<;HAP.  XIV. j  I'HOTECTIOX     OF     EASEMENTS.  853 

§  896  a.  Obstruction  to  passage  way  under  railroad.  Where 
a  land  owner  has  conveyed  a  right  of  way  to  a  railway  com- 
pany, upon  its  agreement  to  construct  and  maintain  a  pas- 
sage way  for  teams  and  cattle  under  the  railroad,  and  such 
way  has  been  constructed  and  used  for  many  years,  the 
land  owner  may  enjoin  the  filling  up  of  the  way  by  a  com- 
pany which  has  succeeded  to  the  rights  of  the  former  com- 
pany  under   foreclosure   proceedings.^"* 

§  896  b.  Right  of  passage  through  rooms ;  stairway.  As 
between  different  tenants  occupying  different  portions  of 
the  same  building,  one  who  has  long  enjoyed  and  exercised- 
an  easement  or  right  of  passage  through  the  other's  rooms; 
to  obtain  access  to  a  heater  used  in  warming  the  building 
may  enjoin  an  interruption  by  the  other  tenant  in  the  use 
of  such  easement.'*'^  But  a  widow,  having  a  dower  interest 
in  the  half  of  a  building  and  claiming  an  easement  in  a  stair- 
way upon  the  other  half  of  the  building,  has  been  refused 
an  injunction  to  prevent  the  removal  of  such  stairway  by 
the    owner.^*^ 

§  896  c.  Easement  arising  from  sale  vdth  reference  to  plat. 
Where  the  original  proprietor  of  a  subdivision  makes  a  plat 
dividing  the  land  into  lots,  blocks  and  streets  and  afterwards 
sells  and  conveys  lots  with  reference  to  the  plat,  a  right  in 
the  nature  of  an  easement  arises  in  favor  of  all  subsequent 
purchasers  of  property  fronting  upon  the  streets  to  have 
them  at  all  times  kept  free  and  unobstructed;  and  the  erec- 
tion of  a  bridge  over  the  highway  by  one  owning  buildings 
upon  both  sides  will  be  enjoined  as  an  unlawful  interference 
with   such   right.-*^ 

**  Swan  (;.  B.,  C.  R.  &  N.  R.  Co.,  4«  Scott  r.  Palms,  48  Mich.,  505, 

72  Iowa,  650,  34  N.  W.,  457.  12  N.  W.,  677. 

is  Hodge  D.   Giese,  43  N.  J.  Eq.,  47  Field  v.  Barling,  149  111.,  556, 

342,  11  All.,  484.  37  N.  E.,  850,   24  L.  R.  A.,  406. 


CHAPTER  XV. 

OF  INJUNCTIONS  FOR  THE  PROTECTION  OF  FRANCHISES. 

I.  Nature  axd  Grounds  of  the  Relief  §  897 

II.  Roads  and  Railways 912 

III.  Bridges    917 

IV.  Ferries   927 

I.  Nature  and  Grounds  of  the  Relief. 

§  897.  The  general   doctrine  stated. 

898.  Establishing  right  at  law. 

899.  Jurisdiction  akin  to  that  in  nuisance;  water  company  protected. 

900.  Right  must  be  coupled  with  possession;   negligence. 

901.  Former   doctrine  when   grant  not  exclusive   in   terms;    intend- 

ment in  favor  of  exclusiveness. 

902.  Later  doctrine  averse  to  intendment. 

903.  Exclusive   right   to  fishing   protected. 

904.  Letters  patent  to  maintain  theatre. 

905.  Boom  company. 

906.  United  States  courts  may  enjoin  destruction  of  franchise;   tax 

on  franchise. 

907.  Fraudulent   usurpation   of  corporate   franchise. 

908.  Franchise  to  conduct  lottery. 

909.  Written  evidence  of  franchise,  when  required. 

910.  Exclusive  right  of  navigating  river. 

911.  Distinction  between  franchise  and  monopoly;    gas  companies. 

§  897.  The  general  doctrine  stated.  The  violation  of  fran- 
chises or  special  privileges  conferred  by  legislative  authority, 
either  upon  individuals  or  upon  corporations,  affords  fre- 
quent occasion  for  invoking  the  extraordinary  aid  of  equity 
by  way  of  injunction  to  remedy  evils  which  the  usual  modes 
of  redress  in  courts  of  law  are  powerless  to  mitigate  or  to 
prevent.  The  value  of  a  franchise  being  generally  dependent 
upon  its  exclusive  use  and  possession,  it  may  be  protected 
upon  the  ground  of  the  inadequacy  of  the  legal  remedy  and 
the    probability    of    thus    avoiding    a    multiplicity    of    suits. 

854 


CHAP.  XV.]  PROTECTIOX  OF  FEAXCHISES.  855 

Where,  therefore,  the  owner  of  the  franchise  is  in  actual 
possession  and  his  title  or  right  is  not  disputed,  an  in- 
junction is  the  proper  remedy  for  protecting  him  in  the  exer- 
cise   of    the    exclusive    privilege    granted    him    by    statute.^ 

§  898.  Establishing  right  at  law.  The  former  tendency 
of  the  English  Court  of  Chancery  seems  to  have  been  to  re- 
quire plaintiff  first  to  establish  his  right  at  law,  before  relief 
by  injunction  would  be  granted  for  the  protection  of  his 
franchise.-  But  in  this  country  the  rule  may  now  be  re- 
garded as  well  established,  that  to  warrant  the  interposition 
of  equity  for  the  protection  of  franchises  it  is  not  necessary 
that  the  owner  of  the  franchise  should  have  first  established 
his  right  by  action  at  law.  The  legislative  power  of  the 
state  having  authority  to  grant  the  exclusive  right  which  it 
is  sought  to  protect,  the  granting  of  such  right  is  regarded 
as  equivalent  to  having  established  it  at  law.^  And  where 
defendants  are  in  the  actual  possession  of  a  franchise  or  priv- 
ilege granted  them  by  legislative  authority,  they  will  not  be 
restrained  in  the  exercise  of  such  privilege  at  the  suit  of 
persons  having  no  particular  rights  of  their  own,  save  a  gen- 
eral right  common  to  every  citizen,  and  which  it  is  claimed 
the   franchise   violates.^ 

§899.  Jurisdiction  akin  to  that  in  nuisance;  water  com- 
pany protected.     In   a   general  sense   the   relief  afforded  by 

1  Piscataqua       Bridge     -v.     New  S.    C,   4    Edw.     Ch.,     258;     North 

Hampshire   Bridge,    7   N.    H.,    35;  River    S.    B.     Co.    v.    Hoffman,     5 

Hartford  B.  Co.  v.  East  Hartford,  Johns.  Ch.,  300;  Livingston  r.  Van 

16  Conn.,  149;  Enfield  T.  B.  Co.  v.  Ingen,    9    Johns.,    507;    Auburn   & 

Hartford   &   N.   H.    Co.,    17    Conn.,  C.  P.  R.  Co.  v.  Douglass,  12  Barb., 

40;    Gates    v.    McDaniel,    2    Stew.,  553;   Boston  &  L.  R.  Co.  v.  Salem 

211;    Lucas  r.   McBlair,  12   Gill   &  &  L.  R.  Co.,  2  Gray,  1. 

J.,  1;   McRoberts  r.  Washburne,  10  2  Whitchurch  w.  Hide,  2  Atk.,  391, 

Minn.,  23;    Livingston  /-.  Ogden,  4  3  Moor  v.  Veazie,  31  Maine,  360; 

Johns.  Ch.,   48;    Bi  re  Vanderbilt,  Piscataqua  Bridge  v.   New   Hamp- 

Ib.,    57;     Ogden     r.    Gibbons,    lb.,  shire  Bridge,  7  N.  H.,  35. 

150,     affirmed     17     Johns.,     488;  -i  Lansing  r.   North  River  S.  B. 

Tyack  v.  Brumley,  1  Barb.  Ch.,  519;  Co.,  7  Johns.  Ch.,  162. 


856  INJUNCTIONS.  [CKAP.  XV. 

courts  of  equity  against  the  invasion  of  a  franchise  may  be 
regarded  as  akin  to  that  which  is  extended  in  cases  of  nui- 
sance, and  the  violations  of  right  in  the  two  classes  of  cases 
are  closely  analogous.  And  where  the  legislature  has  con- 
ferred an  exclusive  privilege  or  franchise,  and  the  persons 
accepting  it  have  long  been  in  the  exercise  and  enjoyment 
of  all  the  rights  thereby  conferred,  and  have  performed  the 
duties  imposed,  any  acts  which  tend  to  disturb  them  in  their 
rights  and  to  dispossess  them  of  their  franchise  are  in  legal 
contemplation  a  nuisance,  the  only  safe  and  adequate  remedy 
for  which  is  by  recourse  to  equity.^  Thus,  a  water  company, 
having  the  exclusive  right  or  franchise  of  supplying  water 
in  a  given  localitj^  may  enjoin  a  rival  company  from  in- 
terference with  such  right." 

§  900.    Right  must  be  coupled  with  possession ;  UGgligence. 

A  distinctive  feature  of  the  relief  in  this  class  of  cases  is  that 
the  right  for  whose  protection  the  aid  of  equity  is  invoked 
must  be  coupled  with  possession.  While,  therefore,  courts  of 
equity  will  entertain  jurisdiction  to  prevent  any  unauthorized 
interference  with  a  franchise  where  the  person  seeking  relief 
is  in  actual  possession,  yet  if  possession  be  wanting  the  in- 
junction will  be  w'ithheld.  So  he  who  seeks  an  injunction 
for  the  protection  of  a  franchise  must  be  free  from  negligence 
in  order  to  entitle  himself  to  the  relief.  And  where  he  has 
negligently  failed  to  perform  certain  conditions  annexed  to 
the  granting  of  his  franchise  by  the  legislative  power,  he 
will  not  afterward  be  allowed  to  enjoin  the  performance  of 

■•  Boston  &  L.  R.  Co.  r.  Salem  &  «  Williamsport  W.  Co.  v.  Lycom- 

L.  R.  Co.,  2  Gray,  1;  Boston  Water  ing  G.   &   W.    Co.,   95    Pa.    St.,    3.5. 

P.   Co.   V.   Boston  &  W.   R.   Co.,  16  As  to  the  considerations  governing 

Pick.,  512.     The  same  principle  is  the    court    in  refusing     a  preliml- 

recognized    in   Central    B.     Co.    7;.  nary  injunction  in  such  case,  see 

I>owell,  4  Gray,  474,  although  the  Stein   r.   Bienville  W.    S.    Co.,    32 

injunction   was   refused   on    other  Fed.,  876. 
grounds. 


CUAP.  XV.|  IM{OTECTION  OF  FRANCHISES.  857 

those    conditions    by    others    authorized    so    to    do    by    act    of 
legislature^ 

§901.  Former  doctrine  when  grant  not  exclusive  in  terms; 
intendment  in  favor  of  exclusiveness.  Not  a  little  eonlliet 
of  authority  has  existed  upon  the  question  whether  equity 
may  interfere  by  injunction  for  the  protection  of  a  franchise 
which  is  not  made  exclusive  in  its  nature  by  the  express 
terms  of  the  legislative  grant,  and  whether  any  intendment 
or  presumption  may  be  indulged  for  the  purpose  of  giving 
an  exclusive  character  to  the  grant  w4iich  the  legislative 
power  has  not  seen  fit  specifically  or  expressly  to  confer. 
The  earlier  doctrine  upon  this  subject,  which  had  the  sanc- 
tion of  no  less  an  authority  than  Chancellor  Kent,  was,  that 
although  the  franchise  or  grant  to  the  citizen  which  it  was 
sought  to  protect  by  injunction  was  not  in  terms  exclusive, 
yet  the  element  of  exclusiveness  might  be  attached  to  it  by 
necessary  implication  and  that  the  franchise  should  be  so 
construed  as  to  give  it  due  effect  by  excluding  all  contiguous 
competition  of  an  injurious  character.  And  in  conformity 
with  this  doctrine  injunctions  were  allowed  for  the  protec- 
tion of  franchises  resting  in  legislative  grant,  which  by  their 
terms  were  not  exclusive.^ 

§  902.  Later  doctrine  averse  to  intendment.  The  later  and 
now  generally  received  doctrine,  however,  is  that  legislative 
acts  granting  franchises  to  corporations  are  to  be  strictly 
construed  in  accordance  with  the  terms  of  the  grant,  and 
that  the  grantee  takes  nothing  by  implication  either  as 
against  the  state,  or  as  against  other  grantees  of  similar 
franchises  from  the  state.  In  order,  therefore,  to  warrant 
relief  in  equity  against  an  invasion  of  or  infringement  upon 

"  Enfield  T.  B.  Co.  v.  Connecticut  5  John.  Ch.,  101.  But  the  doctrine 

River  Co.,  7  Conn.,  51.  of  these  cases  is  overruled  in  Au- 

«  3  Kent's  Com.,  459;  Croton  Turn-  burn    &    Cato    Plank    Road    Co.    v. 

pike  Co.  V.  Ryder,  1  John.  Ch..  611 ;  Douglass,   9  N.   Y.,   444. 
Newburgh  Turnpike  Co.  v.  Miller, 


858  INJUNCTIONS.  [chap,  XV. 

the  franchise,  it  must  appear  by  the  terms  of  the  grant  from 
the  state  that  plaintiff  is  entitled  to  the  exclusive  enjoy- 
ment of  the  franchise  in  question ;  and  unless  this  element 
of  exclusiveness  appears  in  the  grant  itself,  it  will  not  be  im- 
ported by  implication.  Unless,  therefore,  the  grant  of  the 
franchise  under  which  plaintiff  claims  is  exclusive  in  its 
terms,  equity  will  not  interfere  by  injunction  to  restrain 
the  operations  of  persons  claiming  the  right  to  exercise  a 
similar  franchise  under  legislative  authority.^  And  since  an 
exclusive  franchise  can  not  be  implied  from  a  legislative 
grant,  in  the  absence  of  express  terms  whereby  it  is  made 
exclusive,  it  follows  that  a  legislature  may  rightfully  create 
a  franchise  which  will  conflict  with  one  previously  created, 
if  the  first  were  not  in  express  terms  exclusive  of  all  others. 
Thus,  a  railway  company  may  be  incorporated  to  run  its  road 
through  the  same  valley  with  a  canal  previously  incorporated, 
but  whose  charter  is  not  exclusive  in  terms ;  and  if  the 
termini  of  the  railway  are  such  as  to  require  it  to  cross  the 
canal,  it  will  not  be  enjoined  from  the  erection  of  bridges 
for  that  purpose.^  ^  And  when  a  city  grants  to  a  street  rail- 
way company  the  right  to  maintain  and  operate  its  railway 
in  the  streets,  'the  city  having  no  power  to  grant  such  a 
privilege  in  perpetuity  to  the  exclusion  of  other  companies, 

9  Charles  River  Bridge  v.  War-  Creek  Turnpike  Co.  v.  Davidson 
ren  Bridge,  11  Pet.,  420,  Mr.  Jus-  Co.,  3  Tenn.  Ch.,  396.  See  also 
tice  Story  and  Mr.  Justice  Thomp-  Crawfordsville  &  E.  T.  Co.  v. 
son  dissenting,  affirming  S.  C,  6  Smith,  89  Ind.,  290.  In  a  note  to  3 
Pick.,  376;  Auburn  &  Cato  Plank  Kent's  Com.,  459,  the  learned  com- 
Road  Co.  V.  Douglass,  9  N.  Y.,  444,  mentator  concedes  that  the  rule  as 
reversing  S.  C,  12  Barb.,  553,  and  contended  for  by  him  is  subverted 
overruling  Croton  Turnpike  Co.  ?'.  by  the  Charles  River  Bridge  case, 
Ryder,  1  John.  Ch.,  611,  and  New-  and  admits  vi^ith.  expressions  of  re- 
burgh  Turnpike  Co.  v.  Miller,  ^  gret  that  the  doctrine  of  the  latter 
John.  Ch.,  101;  Tuckahoe  Canal  case  is  now  the  prevailing  doctrine 
Co.  V.  Tuckahoe  R.  Co.,  11  Leigh,  in  American  constitutional  law. 
42;  Fall  v.  County  of  Sutter,  21  lo  Tuckahoe  Canal  Co.  v.  Tucka- 
Cal.,  237;  President  v.  Trenton  C.  hoe  R.  Co.,  11  Leigh,  42. 
B.  Co.,  2  Beas.,  46.  But  see  White's 


CHAP.  XV.]  PROTECTION  OF  FRANCHISES.  859 

a  rival  company  will  not  be  enjoined  from  constructing  and 
operating  a  line  through  the  same  streets.^  ^ 

§  903.  Exclusive  right  to  fishing  protected.  An  exclusive 
right  of  fishing  in  a  river,  which  is  derived  and  held  under 
letters  patent  from  the  crown,  is  treated  as  a  franchise  of 
such  a  nature  as  to  be  protected  in  equity.  And  where,  in 
such  a  case,  plaintiff  has  established  his  right  by  a  verdict 
at  law,  he  is  entitled  to  the  aid  of  equity  by  injunction  to 
restrain  an  interference  with  his  exclusive  right.^^ 

§  904.  Letters  patent  to  maintain  theatre.  Where  under 
an  act  of  parliament  letters  patent  are  issue  by  the  crown 
to  a  citizen,  authorizing  him  during  a  specified  term  to  main- 
tain a  theatre  in  a  city,  the  statute  prohibiting  any  person 
from  acting  within  the  city,  except  in  such  theatre  as  should 
be  so  established,  under  a  penalty  to  be  recovered  by  any 
person  who  sluuld  sue  for  the  same,  it  is  held  that  the 
patentee,  having  no  such  right  as  would  enable  him  to  sue 
at  law,  and  having  only  a  right  in  common  with  others  to 
sue  for  the  penalty  as  a  common  informer,  is  not  entitled  to 
an  injunction  to  restrain  unauthorized  persons  from  acting 
in  a   theatre   for   which  no  patent  has  been  granted.^^ 

§  905.  Boom  company.  When  a  corporation  of  a  quasi 
public  nature,  such  as  a  boom  company,  whose  franchises  are 
granted  for  the  public  use,  is  in  the  lawful  exercise  of  such 
franchises  in  constructing  and  maintaining  booms  for  receiv- 
ing logs  upon  a  navigable  river,  an  action  can  not  be  main- 
tained by  a  riparian  owner  to  enjoin  such  corporation,  since 
this  would  be  in  effect  to  allow  a  private  action  against  the 
state  itself  to  subordinate  the  paramount  public  right  to 
the   subservient   private  right.     And   if  such  corporation  has 

11  Birmingham  &  P.  M.  S.  R.  Co.  12  Ashworth    v.    Browne,    10    Ir. 

V.  Birmingham  S.  R.  Co.,  79  Ala.,  Ch.  421. 

465.     And   see  Montgomery  G.  L.  is  Calcraft  v.  West,  2  Jo.  &  Lat., 

Co.   r.   City  Council,  87   Ala.,    245,  123. 
6  So.,  113,  4  L.  R.  A.,  616. 


860  INJUNCTIONS.  [CIIAP.  XV. 

SO  constructed  its  works  as  to  impede  the  navigation  of  the 
river,  the  remedy  must  be  sought  not  in  equity,  but  in  an 
action   at  law   for   damages.^  ^ 

§  906.  United  States  courts  may  enjoin  destruction  of  fran- 
chise; tax  on  franchise.  While  as  a  general  rule  the  courts 
of  the  United  States  have  no  jurisdiction  to  restrain  pro- 
ceedings in  the  state  courts,^ '^  they  will  grant  an  injunction 
against  a  public  officer  of  a  state  to  restrain  him  from  such 
proceedings  under  a  void  statute  of  the  state  as  are  likely 
to  destroy  a  franchise  created  by  the  United  States.^^  But 
the  fact  that  a  tax  has  been  illegally  imposed  upon  a  fran- 
chise does  not  of  itself  constitute  sufficient  foundation  for 
relief  by  injunction.  In  this  respect  a  tax  upon  a  franchise 
does  not  differ  from  a  tax  levied  upon  any  other  species  of 
property,  real  or  personal,  and  a  court  of  equity  is  governed 
by  the  same  principles  in  granting  or  withholding  an  injunc- 
tion against  taxation  of  a  franchise  as  are  applicable  in 
all  other  cases  where  its  aid  is  invoked  to  restrain  the  col- 
lection of  revenues.  If,  therefore,  the  only  equity  in  sup- 
port of  the  bill  is  the  illegality  of  the  tax  imposed,  the 
proper  remedy  is  at  law,  and  an  injunction  will  not  be  al- 
lowed.^'^  If,  however,  the  injury  is  so  irremediable  in  its 
nature  as  to  render  the  legal  remedy  inadequate  to  redress 
the  wrong  complained  of,  as  if  there  is  danger  of  the  destruc- 
tion of  the  franchise  itself  by  the  threatened  enforcement 
of  an  unconstitutional  tax,  an  injunction  may  properly  be 
allowed.^  ^ 

55  907.  Fraudulent  usurpation  of  corporate  franchise. 
Wlicre    parties   are    fraudulently    possessed    of   the    franchises 

!•*  Cohn  V.  Wausau  Boom  Co.,  47  And  see  Mechanics  Bank  r.  Debolr., 

Wis.,  314,  2  N.  W.,  546.  1  Ohio  St.,  591. 

!"•  Diggs  V.    Wolcott,    4    Cranch,         '^  Foote  v.  Linck,  5  McLean,  616; 

179.  Woolsey  ;;.  Dodge,  6  McLean,  142. 

ifiOsborn     v.     U.     S.     Bank,     9  These  cases  are  based  upon  Osborn 

Wheat.,  738.  c-  U.  S.  Bank,  9  Wheat,  738. 

'7De  Witt  V.   Hays,   2  Cal.,  463. 


CHAP.  XV.] 


PROTECTIOX  OF  FRANCHISES. 


861 


of  a  corporation  created  by  law,  and  are  exercisin*:?  its  func- 
tions, a  bill  for  an  injunction  will  lie  in  behalf  of  the  per- 
sons aggrieved  as  a  matter  of  private  right,  and  it  is  not 
necessary  that  proceedings  be  first  had  by  the  proper  officer 
of  the  state  to  oust  the  corporation  of  its  franchise.  And 
it  is  competent  in  such  case  for  any  number  of  the  stock- 
holders of  the  corporation  to  file  a  bill  for  an  in  junction. ^'^ 
But  if  no  questions  of  private  right  are  involved,  the  charge 
being  of  the  usurpation  of  a  franchise  by  a  corporation 
assuming  powers  not  within  its  charter,  in  direct  contraven- 
tion of  a  public  statute,  equity  will  not  interfere  by  in- 
junction, the  proper  remedy  being  by  information  in  the 
nature  of  a  quo  warranto.-^ 


I'J  Putnam  v.  Sweet,  1  Chand., 
286. 

-0  Attorney-General  v.  Utica  Ins. 
Co.,  2  Johns.  Ch.,  371.  This  was 
an  information  filed  by  the  Attor- 
ney-General to  restrain  defendant, 
an  insurance  company,  from  con- 
ducting a  banking  business  in  vio- 
lation of  a  statute  prohibiting  un- 
incorporated banking  associations. 
The  injunction  was  refused,  Kent, 
Chancellor,  observing:  *  *  * 
"The  right  of  banking  was,  form- 
erly, a  common  law  right  be- 
longing to  individuals,  and  to  be 
exercised  at  their  pleasure.  But 
the  legislature  thought  proper,  by 
the  restraining  act  of  1804,  and 
which  has  since  been  re-enacted, 
to  take  away  that  right  from  all 
persons  not  specially  authorized  hy 
law.  Banking  has  now  become  a 
franchise  derived  from  the  grant 
of  the  legislature,  and  subsisting 
only  in  those  who  can  produce  the 
grant;  if  exercised  by  other  per- 
sons, it  is  the  usurpation  of  a  priv- 
ilege, for  which  a  competent  rem- 
edy can  be  had  by  the  public  pros- 


ecutor in  the  Supreme  Court.  I  can 
not  find  that  this  court  has  any  or- 
dinary concurrent  jurisdiction  in 
the  case.  *  *  *  The  charge 
contained  in  the  information  sa- 
vors, then,  CO  much  of  a  criminal 
offense  that  it  would  require  a  clear 
and  settled  practice  to  justify  the 
interference  of  this  court,  when 
that  interference  is  not  called  for 
in  aid  of  a  prosecution  at  law.  The 
charge  of  an  usurpation  of  a  fran- 
chise has  so  frequently  occurred, 
and  the  remedy  by  injunction  is  so 
convenient  and  summary,  that  the 
jurisdiction  of  this  court  would 
have  been  placed  beyond  all  pos- 
sibility of  doubt,  and  have  been 
distinctly  announced,  by  a  series 
of  precedents,  if  any  such  general 
jurisdiction  existed.  But  I  have 
searched  in  vain  for  this  authentic 
evidence  of  such  a  power.  The 
precedents  are  all  in  the  court  of 
K.  B.,  and  Kyd  cites  nearly  an 
hundred  instances,  within  the  last 
century,  of  informations  filed  in 
the  K.  B.  to  call  in  question  the 
exercise  of  a  franchise." 


862  INJUNCTIONS.  [chap.  XV.- 

§  908.  Franchise  to  conduct  lottery.  Inadequacy  of  the 
remedy  at  law  and  the  avoiding  of  a  multiplicity  of  suits 
are  strong  grounds  for  the  granting  of  injunctions  to  pro- 
tect statutory  privileges  of  an  exclusive  nature.  And  a 
franchise  to  cany  out  a  lottery  scheme  for  a  public  purpose 
is  so  far  exclusive  as  to  come  within  this  rule  and  to  be 
entitled  to  protection  by  injunction.  In  such  case  the  com- 
missioners appointed  by  law  to  carry  out  the  purposes  of 
the  lottery  are  proper  parties  to  institute  an  action  in  their 
own  name  to  restrain  a  violation  of  the  franchise  committed 
to    them;    but   the    state    is   not    a    necessary    party. -i 

§  909.      Written    evidence    of    franchise,    when     required. 

Where  the  existence  of  complainant's  right  or  franchise  de- 
pends upon  a  written  instrument  or  contract,  he  will  be  re- 
quired to  produce  such  written  evidence,  or  in  default  there- 
of to  assign  some  satisfactory  reason  for  his  failure.  If  he 
omits  to  produce  such  evidence  and  fails  to  assign  any  satis- 
factory reason  for  such  omission,  he  will  not  be  allowed  an. 
in  junction. -- 

§  910.  Exclusive  right  of  navigating-  river.  Legislative 
grants  of  the  exclusive  right  of  navigating  rivers  Avith  steam- 
boats have  been  the  subject  of  judicial  construction,  with 
reference  to  the  question  whether  a  franchise  thus  con- 
ferred is  entitled  to  protection  by  injunction.  Where  such 
a  franchise  is  granted  by  a  state  legislature,  and  it  in  no 
manner  conflicts  with  the  power  of  Congress  under  the  con- 
stitution to  regulate  inter-state  commerce,  the  franchise  may 
be  protected  by  injunction.-^  And  in  New  York  it  was  for- 
merly held  that  an  exclusive  franchise  of  this  character  was 
entitled  to  protection  in  equity,  even  in  cases  where  it  in- 
terfered with  the  right  of  navigation  as  between  different 
states,  and  that  citizens  of  another  state  might  be  enjoined 

21  Lucas  r.  McBlair,  12  Gill  &  J.,  22  Hankey  v.  Abrahams,  28  Md., 
1.  589. 

23  Moor  V.  Veazie,  31   Me.,  360. 


CHAP.  XV.]  PROTECTION  OF  FBAXCHISES.  863 

from  interfering  with  the  exercise  of  the  right,  although 
their  vessels  were  duly  licensed  under  the  laws  of  the  United 
States  as  coasting  vessels. ^^  But  upon  appeal  to  the  Supreme 
Court  of  the  United  States  the  doctrine  of  the  New  York 
courts  was  overthrown,  and  it  was  held  that  the  acts  of 
the  state  legislature  granting  the  exclusive  rights  in  ques- 
tion were  repugnant  to  that  clause  of  the  constitution  of 
the  United  States  which  authorizes  Congress  to  regulate  cora,- 
merce,  and  that  relief  by  injunction  should  not  be  allowed; 
and  this  doctrine  was  afterward  acquiesced  in  by  the  courts 
of  New  York.25 

§911.  Distinction  between  franchise  and  monopoly;  gas 
companies.  A  distinction  has  been  drawn  between  a  franchise 
proper,  granted  by  legislative  authority  upon  adequate  con- 
sideration, where  the  owner  of  the  franchise  is  bound  to 
the  performance  of  certain  obligations  toward  the  public,  and 
a  mere  monopoly  of  an  ordinary  branch  of  trade,  over  which 
the  government  has  no  exclusive  prerogative,  and  where  no 
consideration  either  of  a  public  or  private  character  is  re- 
served for  the  grant.  And  while,  as  we  have  seen,  the 
jurisdiction  by  injunction  is  freely  exercised  for  the  pro- 
tection of  franchises,  the  grant  by  the  government  of  a 
monopoly  in  the  exercise  of  an  ordinary  business  over  which 
the  government  has  no  control,  without  any  consideration 
and  to  the  exclusion  of  all  others  desiring  to  engage  in  such 
business,  will  not  be  protected  by  injunction.  Thus,  where 
by  an  amendment  to  the  charter  of  a  gas  company  authoriz- 
ing it  to  lay  its  pipes  through  the  streets  and  public  grounds 
of  a  city,  it  is  provided  that  the  right  shall  be  exclusive  ex- 
cept  against   such   other   persons   as   may   be   authorized   by 

24  Livingston  v.  Ogden,  4  Johns.  Co.  v.  Hoffman,  5  Johns.  Ch.,  300. 

Ch.,  48;   In  re  Vanderbilt,  lb.,  57;  25  Gibbons  r.  Ogden,  9  Wheat.,  1; 

Ogden     r.      Gibbons,   lb.,   150,    af-  North  River  Steamboat  Co.  v.  Liv- 

firmed  17  Johns.,  488,  but  reversed,  ingston,  3  Cow.,  713. 
9  Wheat.,  1;    North    River    S.  B. 


SH-i  INJUNCTIONS.  [chap.  XV. 

legislature,   such    provision    is   held   to   constitute   a    monopoly 
which  is  not  entitled  to  protection  in  equity,  and  an  injunc- 
tion will  not  be  allowed  to  prevent  another  company  from 
laying  down  its  gas  pipes.     Nor  will  the  fact  that  pending 
the  controversy  complainants  have  bought  a  parcel  of  land 
so   situated   with   reference   to    the   public   highway   that   de- 
fendants are  obliged  to  lay  their  main  pipe  through  it,  au- 
thorize an  injunction  in  favor  of  complainants ;  their  volun- 
tary   purchase    of    the    land    pendente    lite    does    not    entitle 
them   under   such  circumstances  to   the   favorable   considera- 
tion  of  a   court   of  equity,   and  the   injury,   if  any,   may   be 
compensated    by    damages    in    an    action    of    trespass.-**      In 
Kentucky,  however,   a  different  doctrine  prevails;   and   it  is 
there   held   that   when    a   gas   company   asserts   the   exclusive 
right    under    its    charter    of    manufacturing    gas    in    a    city, 
equity  may  entertain  jurisdiction  of  a  bill  to  enjoin  a  rival 
company  from  interference  with  plaintiff's  rights,  the  juris- 
diction resting  upon  the  necessity  of  preventing  cloud  upon 
title.-'^      It   is   also   held   in   Kentucky   that   an   injunction   is 
the  appropriate  remedy  to  prevent  a  city,  which  has  by  con- 
tract conferred   upon   a    gas   company   an   exclusive   right  in 
the  streets  for  a  term  of  years,  from  conferring  a  like  priv- 
ilege upon  another  company.-^    But  a  gas  company,  supplying 
gas  to  a  city,  can  not  restrain  a  rival  company  from  furnish- 
ing   gas    upon    the    ground    that    the    latter    is    supplying    a 
poorer  quality  of  gas  than  required  by  the  law  under  which 
it  is  incorporated.-"     And  when  the  franchise  claimed  is  that 
of   an   exclusive   right    to   lay   pipes   in   the   streets   for   sup- 
plying water  to  a  city,  but  the  legal  right  is  disputed  and 
has  never  been  determined,  a  preliminary  injunction  will  be 
refused.*''® 

2"  Norwich  Gas  Light  Co.  r.  Nor-  20  Jersey  City  G.  Co.  v.  Consum- 

wich  City  Gas  L.  Co.,  25  Conn.,  19.  ers   G.   Co.,   40   N.   J.    Eq..    427.    2 

^7  Citizens  G.  L.  Co.  r.  Louisville  Atl.,  922. 

G.  Co..  81  Ky.,  263.  :■"  Atlantic    City    W.    W.    Co.     v. 

!^N  City  of  Newport  r.  Newport  L.  Consumers  W.   Co.,   44   N.    J.   Bq., 

Co.,   84   Ky..   1«6.  427.   1.")  Atl.,  .'581. 


CHAP.  XV.]  PROTECTION"  OF  FRANCHISES.  865 


II.  Roads  and  Railways. 

§  912.  Franchise  in  road  protected;    toll-gates. 

913.  Diligence  required  in  seeking  relief. 

914.  Exclusive  railroad  franchise  between  terminal  points  protected. 

915.  Exclusive  nature  of  plaintiff's  right;  street  railways. 

916.  Coach  company  enjoined  from  using  street  railway;  rival  street 

railways. 

§912.  Franchise  in  road  protected;  toll-gates.  Frequent 
instances  of  the  interference  of  equity  to  prevent  the  viola- 
tion of  a  franchise  occur  in  the  case  of  roads,  as  where  the 
exclusive  right  to  control  and  operate  a  highway,  turnpike, 
or  other  road,  has  been  granted  to  individuals  or  to  cor- 
porations. Thus,  where  complainant's  road  is  incorporated 
under  an  act  of  legislature,  which  provides  that  no  other 
road  shall  be  constructed  within  thirty  years  after  the  pas- 
sage of  the  act,  the  act  being  held  constitutional  is  re- 
garded as  creating  a  contract  with  the  corporation  and  an 
injunction  will  be  allowed  against  the  operation  of  a  rival 
road.i  And  although  such  injuries  to  a  franchise  as  call 
for  the  interposition  of  equity  and  the  granting  of  an  in- 
junction are  generally  in  the  nature  of  nuisances,  and  al- 
though the  jurisdiction  of  equity  over  such  cases  partakes 
largely  of  the  nature  of  the  jurisdiction  in  restrain  of  nui- 
sance, yet  the  relief  may  be  granted  where  the  injury  to 
the  franchise  is  purely  a  trespass,  if  the  remedy  at  law  is 
inadequate.  And  the  destruction  of  toll-gates  and  prevent- 
ing  the  collection  of  tolls,  although  a  trespass,  is  such  a 
one  as  can  not  be  adequately  compensated  in  damages  in 
an  action  at  law,  and  it  will  therefore  be  enjoined  in  equity. - 

1  Boston  &  L.  R.  Co.  v.  Salem  &  County  of  Plumas,  80  Cal.,  338,  22 

L.  R.  Co.,  2  Gray,  1;  Boston  Water  Pac,  254. 

P.  Co.  V.  Boston  &  W.  R.  Co.,  Ifi  2  Justices  v.  Griffin  &  W.  P.  P.  R. 

Pick.,  512.     And  see  Central  B.  Co  Co..  11  Ga.,   246. 
V.   Lowell,   4   Gray,   474;    Welch   r. 
55 


866  INJUNCTIONS.  [chap.  XV. 

§  913.  Diligence  required  in  seeking  relief.  As  in  all 
cases  where  the  preventive  jurisdiction  of  equity  is  in- 
voked for  the  protection  of  rights,  he  who  seeks  relief  against 
a  violation  of  a  franchise  must  make  his  application  promptly 
and  without  delay,  and  must  use  reasonable  diligence  in  the 
assertion  of  his  right.  And  where  the  grievance  complained 
of  consists  in  the  construction  of  a  road  in  such  manner  as; 
to  impair  complainant's  franchise,  but  defendants  have  been 
permitted  for  a  long  period  to  proceed  with  the  construction 
of  their  work  and  to  incur  large  expenditures  without  ob- 
jection, the  injunction  will  be  withheld.-^ 

§  914.  Exclusive  railroad  franchise  between  terminal 
points  protected.  It  would  seem  that  actual  injury  to  the 
franchise  must  exist  before  an  injunction  will  be  awarded,, 
and  that  a  mere  apprehension  of  injurious  results  will  not. 
suffice  if  the  work  which  it  is  sought  to  restrain  may  be 
undertaken  for  a  legitimate  purpose.  And  where  complain- 
ants are  by  their  charter  vested  with  the  exclusive  franchise 
of  transporting  passengers  and  freight  by  railway  between 
two  cities,  although  they  are  entitled  to  the  aid  of  equity 
to  protect  their  franchise,  yet  a  preliminary  injunction  will 
not  be  allowed  to  prevent  two  other  corporations  from  effect- 
ing a  union  of  their  roads  and  forming  a  continuous  line 
between  the  two  points.  The  fact  that  such  a  junction  may 
be  used  in  derogation  of  complainants'  rights  will  not  war- 
rant the  interference,  if  there  be  another  and  a  legitimate 
purpose  for  which  it  may  be  formed,  since  equity  will  not 
restrain  the  carrying  out  of  undertakings  having  a  legitimate 
object  in  view,  merely  because  they  may  be  perverted  to 
unlawful  purposes.^  But  when  in  such  case  it  appears  upon 
final  hearing  that  complainants'  rights  are  clear  and  unques- 
tioned, and  that  they  have  been  for  more  than  thirty  years- 
in    the   cnjoyiiiciit    of   tln'ir    fVaiichise    of   carrying   passengers 

■■  South  Carolina  R.  Co.  r.  Colum-         '  Delaware  &  R.  Co.  r.  Camden 
bia  &  A.  R.  Co.,  13  Rich.  Eq.,  339.       &  A.  R.  Co.,  2  McCart,  1. 


CHAP.  XV,]  PROTECTION  OF  FRAXCHISES.  867 

and  freight  between  the  two  cities,  an  injunction  will  be 
allowed  to  prevent  defendants  from  exercising  the  rights  of 
complainants  under  their  franchise  to  carry  passengers 
through  from  city  to  city.""'  And  where  a  railway  company 
is  vested  with  the  exclusive  franchise,  as  against  all  per- 
sons save  the  state  and  those  upon  whom  the  state  has  con- 
ferred it,  to  construct  and  operate  a  railroad  across  the 
state  between  two  terminal  cities,  it  is  entitled  to  an  in- 
junction against  the  construction  of  a  rival  and  competing 
road  between  the  two  cities,  which  is  being  constructed 
under  legislative  authority.*^  So  a  railway  company  in- 
vested with  the  privilege  of  loading  and  unloading  its  cars 
in  the  public  streets  of  a  city,  which  it  has  exercised  for 
many  years,  may  enjoin  the  city  from  enforcing  an  ordi- 
nance prohibiting  the  exercise  of  such  privilege.  And  it  is 
no  objection  to-  granting  the  relief  in  such  case  that  the 
attempted  invasion  of  plaintiff's  rights  is  accompanied  by 
acts  which  amount  to  personal  trespasses.'^ 

§915.  Exclusive  nature  of  plaintiff's  right;  street  rail- 
ways. To  warrant  relief  by  injunction  against  the  viola- 
tion of  a  franchise,  satisfactory  proof  must  be  shown  of  the 
exclusive  nature  of  plaintiff' 's  right.  And  where  a  company 
claims  the  exclusive  privilege  of  constructing  and  operating* 
a  street  railway  through  a  city,  and  seeks  to  enjoin  another 
company  from  so  doing,  if  the  evidence  is  conflicting  as  to 
plaintiff's  right  to  the  enjoyment  of  the  exclusive  franchise 
claimed,  because  of  doubt  as  to  its  compliance  with  the  con- 
ditions annexed  to  the  legislative  grant,  an  injunction  should 
not  be  granted  upon  an  interlocutory  application.^  So  it  is 
held  that  the  franchise  of  a  street  railway  company  does  nol" 

•'-'  Delaware  &  R.  Co.  v.  Camden  N.  R.  Co.,  84  Ala.,  115,  4  So.,  10«. 

&  A.  R.  Co.,  1  C.  E.  Green,  321,  af-  See  also  City  Council  of  Montgom- 

firmed   on  appeal,  3   C.  E.   Green,  ery  v.  Louisville  &  N.   R.  Co.,  84 

546.  Ala.,  127,  4  So.,  626. 

«  Pennsylvania  R.  Co.  v.  National  «  Savannah  R.  Co.  v.  Coast  Line 

R.  Co.,  8  C.  E.  Green,  441.  R.  Co.,  49  Ga.,  202. 

■?  Port  of  Mobile  c.  Louisville  & 


868  INJUXOTIONS.  [chap.  XV. 

entitle  it  to  an  injunction  for  the  purpose  of  preventing 
another  company  from  laying  a  double  track  through  the 
same  street,  where  it  does  not  injure  the  first  road,  or  in- 
terfere with  its  running.^  And  the  construction  of  another 
railway  company  through  the  same  streets  included  in  a 
grant  to  a  previous  company  does  not  of  itself  constitute  an 
infringement  of  the  franchise  granted  to  the  prior  company, 
nor  is  it  such  an  encroachment  upon  its  rights  as,  in  the 
absence  of  special  injury,  will  warrant  the  interference  of 
a  court  of  equity.^*^  But  where  a  railway  company,  without 
authority  of  law,  is  proceeding  to  extend  its  track,  such 
unauthorized  extension  is  regarded  as  the  attempted  exercise 
of  a  valuable  franchise,  which  is  of  itself  sufficiently  in- 
jurious to  warrant  a  decree   for  a   perpetual  injunction.^! 

§  916.  Coach  company  enjoined  from  using  street  rail- 
way; rival  street  railways.  A  street  railway  company,  hav- 
ing by  its  charter  the  franchise  of  operating  its  road  over 
the  streets  of  a  city,  is  entitled  to  an  injunction  to  restrain 
a  coach  company  from  using  plaintiff's  tracks  by  running 
its  coaches  thereon  in  competition  with  plaintiff  in  the  busi- 
ness of  carrj'ing  passengers  and  property,  and  from  obstruct- 
ing plaintiff  in  the  use  of  its  tracks. !-  So  when  a  statute 
confirming  certain  franchises  already  enjoyed  by  street  rail- 
way companies  contains  a  i:)roliibition  against  the  construction 
of  any  other  street  railway  parallel  to  those  already  con- 
structed, within  a  given  distance  therefrom,  a  court  of 
equity  may  enjoin  another  company  from  constructing  a 
parallel  road  within  the  prohibited  limit.  And  in  such  case, 
the  injury  being  to  a  right  secured  to  plaintiff  by  statute, 
no  irreparable  damage  need  be  shown  to  warrant  the  re- 
lief.i3 

»  New  York  &  H.  R.  Co.  v.  For-     45  Barb.,  63. 
ty-second   Street  R.  Co.,   50  Barb.,         i-  Camden  Horse  R.  Co.  v.  Citi- 
285.  zens   Coach    Co.,   31    N.   J.    Eq.    (4 

"•Brooklyn  R.   Co.   t'.   Coney   Is-     Stew.),  525. 
land  R.  Co.,  35  Barb.,  364.  i^  St.  Louis  R.  Co.  v.  Northwest- 

11  People  /•.  Third  Avenue  R.  Co.,     ern  St.  L.  R.  Co.,  69  Mo.,  65. 


CHAP.  XV.]  PROTECTION  OF  FRANCHISES.  869 


III.  Bridges. 

§  917.  General  rule. 

918.  Right  need  not  be  established  at  law. 

919.  Jurisdiction  not  dependent  upon  defendant's  profits. 

920.  Landlord  and  tenant. 

921.  Injunction  withheld   where  right   is   doubtful. 

922.  Negligence  may  bar  relief. 

923.  The  right  must  be  exclusive. 

924.  When  legal  right  do'ubtful,  convenience  considered. 

925.  Toll-bridge  protected. 

926.  Acquiescence  a  bar  to  relief. 

§  917.  General  rule.  The  exclusive  right  to  construct  and 
maintain  bridges  being  a  franchise  dependent  upon  legis- 
lative grant,  the  general  principles  of  the  jurisdiction  of 
equity  for  the  protection  of  franchises  extend  to  and  cover 
cases  of  this  nature.  Where,  therefore,  the  exclusive  right 
to  maintain  a  bridge  and  to  collect  toll  is  invaded  and 
the  owner's  rights  are  infringed  without  constitutional  au- 
thority, equity  will  enjoin  such  interference.  The  courts 
proceed  in  such  cases  upon  the  principle  that  the  charter 
granting  the  franchise  constitutes  a  contract  between  the 
public  and  the  corporation,  imposing  certain  burdens  upon 
the  corporation,  which,  when  fulfilled,  entitle  it  to  protec- 
tion in  a  court  of  equity.^ 

§  918.  Right  need  not  be  established  at  law.  As  we  have 
already  seen,  in  considering  the  general  grounds  of  relief 
for  the  protection  of  franchises,  it  is  not  necessary  that  the 
right  should  have  been  first  established  at  law  to  warrant  a 
court  of  equity  in  extending  relief  by  injunction,  since  the 
creation  of  the  franchise  by  legislative  grant  in  the  first  in- 
stance is  regarded  as  a  sufficient  assertion  of  the  legal  right. 
And  where  persons  have  been  granted  by  act  of  legislature 
the   exclusive   privilege   of  building   and  maintaining   a   toll- 

1  Hartford  B.  Co.  v.  East  Hart-  Co.  r.  Hartford  &  N.  H.  Co.,  17 
ford,  16  Conn.,  149;    Enfield  T.  B.     Conn.,  40. 


870  INJUNCTIONS.  [CIIAP.  XV. 

bridge  over  a  river,  their  right  is  sufficiently  established 
at  law  to  entitle  them  to  the  aid  of  equity  for  its  protec- 
tion, and  any  infringement  of  that  right  by  the  erection  of 
another  bridge  to  the  prejudice  of  the  first  will  be  en- 
joined.- 

§  919.  Jurisdiction  not  dependent  upon  defendant's  profits. 
The  jurisdiction  in  this  class  of  cases  is  exercised  entirely 
independent  of  the  question  as  to  whether  the  persons 
against  whom  the  injunction  is  asked  derive  profit  from  their 
interference  with  complainant's  rights.  And  where  defend- 
ant, a  railway  corporation,  allows  persons  to  cross  its  rail- 
way bridge  free  of  toll,  thereby  impairing  complainant's 
franchise  in  a  toll-bridge  near  at  hand,  an  injunction  will 
be  granted  to  restrain  the  railway  company  from  allowing 
its  bridge  to  be  used  for  the  passage  of  any  persons,  ve- 
hicles or  animals  for  which  complainant  is  entitled  to  take 
toll.3 

§  920.  Landlord  and  tenant.  The  relief  may  sometimes 
be  allowed  even  though  the  relation  of  landlord  and  tenant 
exists  between  the  parties  as  to  the  subject  of  the  fran- 
chise to  be  protected.  Thus,  where  complainants  lease  their 
bridge  to  defendants  who  use  it  in  a  manner  expressly  for- 
bidden by  the  terms  of  their  agreement,  thereby  greatly  in- 
juring complainants  in  the  rights  retained  by  them,  an  in- 
junction will  be  allowed  against  such  improper  use.  In  such 
case,  a  court  of  equity  proceeds  upon  the  ground  that  de- 
fendants are  guilty  of  maintaining  a  continuing  nuisance 
which  can  be  best  remedied  by  the  preventive  power  of 
equity."^ 

§  921.  Injunction  withheld  where  right  is  doubtful.  Where, 
notwithstanding    the    legislative    grant    of   the    franchise,    the 

-'  Piscataqua       Bridge     v.  New         •*  Niagara   Bridge   Co.     v.    Great 

Hampshire  Bridge,  7  N.  H..  35.         Western  R.  Co.,  39  Barb.,  212. 

"  Thompson   r.   New  York  &   H. 
R.  Co.,  3  Sandf.  Ch.,  625. 


CHAr.  XV.]  PROTECTIOX  OF  FRAXCHISES.  871 

legal  right  is  not  sufficiently  clear  to  enable  the  court  to 
determine  correctly,  and  where  no  irreparable  mischief  is 
alleged  as  likely  to  result  from  a  continuance  of  the  acts 
complained  of,  the  court  may  very  properly  take  into  con- 
sideration the  relative  convenience  and  inconvenience  to  the 
parties  by  granting  or  withholding  the  relief,  and  be  gov- 
erned thereby  in  its  determination.  Thus,  where  one  has 
received  from  parliament  the  right  to  construct  and  maintain 
a  bridge,  and  seeks  to  restrain  a  railway  company  from  con- 
veying its  passengers  across  the  river  in  steamboats,  but 
does  not  show  any  injury  likely  to  result  from  such  acts 
which  can  not  be  adequately  compensated  in  damages,  the 
question  of  the  respective  rights  of  the  parties  being  in 
doubt,  an  injunction  will  be  withheld.  In  such  a  case  equity 
will  hesitate  to  interfere,  lest  by  granting  the  relief  prayed 
it  might  pronounce  an  opinion  in  favor  of  the  legal  right 
before  a  trial  at  law,  although  it  may  require  defendant 
to  keep  an  account  until  the  legal  right  can  be  determined, 
and  leave  will  be  given  complainant  to  apply  again  for  an 
injunction.^ 

§  922.  Negligence  may  bar  relief.  Negligence  on  the  part 
of  the  owner  of  the  franchise  in  performing  the  conditions 
on  which  he  receives  his  exclusive  right  may  deprive  him  of 
the  aid  of  equity  for  its  protection.  And  where  a  bridge 
company  has  been  granted  the  right  to  erect  and  maintain 
a  bridge,  the  charter  requiring  it  to  provide  certain  locks 
which  it  has  made  no  effort  to  build,  and  by  a  subsequent 
act  of  legislature  it  is  relieved  from  building  the  locks,  it 
will  not  be  allowed  to  enjoin  defendants,  who  are  proceed- 
ing under  legislative  authority,  from  constructing  the  locks.** 

§  923.  The  right  must  be  exclusive.  It  has  already  been 
shown  that  in.  the  exercise  of  the  jurisdiction  of  equity  for 
the  protection  of  franchises  the  right   which  is  the  subject 

5  Cory  r.  Yarmouth  &  N.  R.  Co.,  c  Enfield  T.  B.  Co.  v.  Connecti- 
3  Hare,  593.  cut  River  Co.,  7  Conn.,  51. 


872  ixjuxcTioxs.  [chap.  xv. 

of  legislative  grant,  and  which  it  is  sought  to  protect,  must 
be  exclusive  in  its  nature.  And  where  the  grant  of  a  fran- 
chise is  not  in  terms  a  grant  of  an  exclusive  privilege,  the 
government  is  presumed  not  to  have  intended  to  part  with 
the  exclusive  right,  but  to  retain  it  for  the  public  benefit. 
Equity  will  not,  therefore,  lend  its  aid  in  such  case  for  the 
protection  of  a  right  which  was  not  intended  to  be  exclu- 
sive.''' Thus,  complainants,  whose  right  to  erect  and  maintain 
a  toll-bridge  and  to  receive  the  tolls  is  not  in  terms  exclusive 
of  all  others,  will  not  be  permitted  to  enjoin  the  opening 
of  another  bridge  within  such  distance  as  greatly  to  impair 
the  profits  of  the  first.^  Especially  will  the  aid  of  equity 
be  withheld  in  such  case  where  it  appears  that  complainants 
have  so  far  appropriated  their  bridge  to  the  use  of  a  railway 
company  as  to  render  it  unsafe  and  dangerous  for  the  ordi- 
nary purposes  of  travel  for  which  it  was  originally  con- 
structed.^ 

§  924.  When  legal  right  doubtful,  convenience  considered. 
In  case  of  doubt  as  to  the  actual  legal  right  to  the  fran- 
chise in  controversy,  a  court  of  equity  will  generally  be  in- 
fluenced in  granting  or  withholding  the  injunction  by  con- 
siderations of  the  relative  convenience  and  inconvenience  to 
the  parties  in  the  cause.  And  if  in  such  case  the  incon- 
venience seems  to  be  evenly  balanced,  equity  will  leave  the 
parties  as  they  are  until  the  right  can  be  determined  at  law. 
Thus,  where  the  owner  of  a  bridge  over  a  river,  authorized 
by  act  of  parliament,  seeks  to  restrain  a  railway  company 
from  carrying  its  passengers  across  the  river  in  steamboats, 
the  question  of  the  legal  right  being  somewhat  in  doubt, 
an  injunction  will  not  be  allowed  in  the  absence  of  any  al- 
legations of  irreparable   mischief,   or  of  such   injury   as   can 

'  Fall  V.  County  of  Sutter,  21  «  Fall  v.  County  of  Sutter,  21 
Cal.,  237;    President  v.  Trenton  C.     Cal.,   237. 

B.  Co.,  2  Beas.,  46.  ■'  President  r.  Trenton  C.  B.  Co., 

2  Beas.,  46. 


CHAP.  XV.]  PROTECTION  OF  FRANCHISES.  873 

not  be  adequately  compensated  in  damages  at  law.  The  re- 
lief will  also  be  refused  under  such  circumstances  lest  equity 
may,  by  granting  an  injunction,  pronounce  an  opinion  in 
favor  of  the  legal  right  before  a  trial  at  law.  But  the  de- 
fendants may  be  required  to  keep  an  account,  and  complain- 
ant will  have  liberty  to  apply  again  for  an  injunction.i'^ 

§  925.  Toll-bridge  protected.  The  grant  to  an  incorporated 
company  of  the  privilege  or  franchise  of  building  a  toll- 
bridge  over  a  river,  in  consideration  of  the  company  agree- 
ing to  erect  the  bridge  and  keep  it  in  repair,  and  to  permit 
the  passage  of  citizens  at  certain  rates  of  toll,  constitutes  a 
contract,  and  the  legislature  can  not  alter  or  impair  such 
contract  without  the  consent  of  the  corporators.  And  w^hen 
a  bridge  company,  incorporated  wuth  the  powers  above  men- 
tioned, have  erected  and  maintained  their  bridge  in  accord- 
ance with  their  act  of  incorporation,  the  law  of  the  state 
prohibiting  the  erection  of  another  bridge  within  three  miles 
of  one  already  constructed,  a  court  of  equity  may  properly 
enjoin  the  construction  and  continuance  of  another  bridge 
within  the   limits   fixed   by   law.^^ 

§  926.  Acquiescence  a  bar  to  relief.  But  in  this  class  of 
cases,  as  in  all  others,  plaintiff's  acquiescence  in  the  con- 
struction and  operation  of  that  which  is  afterward  sought  to 
be  enjoined  may  work  an  estoppel  against  the  desired  relief. 
And  where  plaintiff^  an  incorporated  bridge  company,  has 
acquiesced  for  a  number  of  years  in  the  construction  under 
municipal  authority  of  a  bridge  within  the  limits  of  plain- 
tiff's exclusive  franchise,  and  has  assisted  in  repairing  the 
same  when  destroyed,  such  acquiescence  wall  operate  as  an 
estoppel  to  prevent  the  granting  of  an  injunction  to  restrain 
the  further  repairing  of  such  bridge  when  again  destroyed. ^^^ 

i"Cory  r.  Yarmouth  &  N.  R.  Co.,  12  Fremont  F.  &  B.  Co.  v.  Dodge 
3  Hare,  593.  Co.,  6  Neb.,  18. 

11  Micou  i:  Tallassee  Bridge  Co., 
47  Ala.,  652. 


.■874  INJUXCTIONS.  [chap.  XV. 

IV.  Ferries. 

.§  927.  General  rule. 

928.  Relief  not  granted  where  remedy  exists  at  law. 

929.  Complainant  must  be  free  from  blame. 

930.  Modification  of  general  rule. 

931.  Protection  extended   to  land  necessary  for  enjoyment  of  fran- 

chise. 

932.  Rival  ferries  on  river  between  two  states. 

933.  County  enjoined  from  constructing  rival  ferry. 

§  927.  General  rule.  The  right  to  maintain  a  ferry  being 
.a  franchise  whose  value  lies  in  its  exclusiveness,  equity  may 
enjoin  any  unauthorized  interference  with  or  interruption  of 
such  right,  upon  the  ground  of  preventing  multiplicity  of 
suits.^  So  the  erection  of  a  bridge  in  such  close  proximity 
to  a  ferry  whose  franchise  is  created  by  law,  as  to  endanger 
its  profits  and  jeopardize  the  exclusive  right  of  the  pro- 
prietors of  the  ferry,  constitutes  sufficient  ground  to  warrant 
a  court  of  equity  in  granting  an  injunction  for  the  protec- 
tion of  the  franchise.2  So  a  city,  which  is  invested  with 
the  exclusive  franchise  of  maintaining  ferries,  and  of  es- 
tablishing, controlling  and  receiving  the  revenues  of  all 
ferries  between  certain  points,  may  enjoin  the  operation  of 
a  rival  ferry  by  unauthorized  persons  between  such  points.-^ 
The  rule  is,  however,  to  be  accepted  Avith  the  qualification 
that  the  right  must  be  exclusive  in  its  nature  to  entitle  it 
to  the  protet?tion  of  equity.  And  where  complainants  show 
no   exclusive  ferry  privileges  or  franchise,  they  will  not  be 

1  McRoberts    r.     Washburne,     10  Power  r.  Village  of  Athens,  99  N. 

Minn.,  23;   City  of  Laredo  r.  Mar-  Y.,    592,    2    N.    E.,    609;    Mason    v. 

tin,  52  Tex.,  548;  Tugwell  r.  Eagle  Harpers  Ferry  B.  Co.,  17  West  Va., 

Pass  F.  Co.,  74  Tex.,  480,  9  S.  W.,  396;   Carroll  v.  Campbell,  108  Mo.. 

120.   13   S.  W.,  654;    Midland  T.  .<:  550,  17  S.  W.,  884. 

F.  Co.  r.  Wilson,  28  N.  J.  Eq.    (1  -Gates     v.    McDaniel,     2     Stew., 

Stew.),    537;    Patterson    v.    Woll-  211.     See   aiso   Mason   r.    Harpers 

mann,   5   N.   Dak.,   608,   67   N.   W..  Ferry  B.  Co.,  17  West  Va.,  396. 

1040.    33    L.   R.    A.,    536.     And   sec  "-Mayor  r.   Starin,   106   N.  Y.,  1, 

Eroadnax   r.  Baker,  94  N.  C,  675;  12  N.  E.,  031. 


•CHAP.  XV.]  PROTECTION  OF  FRANCHISES.  875 

allowed  to  enjoin  the  keeping  of  another  ferry  at  the  same 
place.* 

§  928.  Relief  not  g^ranted  where  remedy  exists  at  law. 
In  the  exercise  of  the  jurisdiction  for  the  protection  of 
franchises  courts  of  equity  will  look  into  the  question  of 
whether  relief  may  be  had  at  Liav,  and  if  it  appears  that  the 
remedy  at  law  in  damages  is  ample  an  injunction  will  be 
refused.^  Where,  however,  upon  an  amended  bill  complain- 
ant shows  the  exclusive  right  to  a  ferry,  which  is  being  vio- 
lated by  defendant,  and  shows  his  inability  to  procure  proof 
so  as  to  proceed  with  an  action  at  law,  he  is  entitled  to  re- 
strain the  infringement  of  his  franchise,  even  though  a 
former  application  had  been  refused  on  the  ground  that  the 
remedy  at  law  was  ample.*' 

§  929.     Complainant  must  be   free   from  blame.     He   who 

seeks  the  aid  of  equity  to  restrain  encroachments  upon  his 
franchise  must  himself  be  free  from  blame,  since  negligence 
and  inattention  to  the  business  of  his  franchise  and  to  the 
wants  of  the  public  will  estop  him  from  relief.  Thus,  where 
complainant  claims  the  exclusive  right  to  operate  a  ferry 
within  certain  limits,  he  will  not  be  allowed  to  enjoin  de- 
fendant from  maintaining  a  ferry  in  violation  of  such  right, 
where  it  appears  from  the  evidence  that  complainant  has 
been  guilty  of  such  a  degree  of  inattention  and  gross  care- 
lessness as  Avould  warrant  the  forfeiture  of  his  rights  in  a 
proper  proceeding  for  that   purpose.'^ 

§  930.  Modification  of  general  rule.  Equity  will  only  in- 
terfere for  the  protection  of  a  franchise  against  those  whose 
conduct  as  regards  the  general  public  is  such  as  to  impair 
the  right  of  the  owner  of  the  franchise.  In  accordance  with 
this    principle,    it   has    been    held    that    private    persons    will 

4  Butt  V.  Colbert,   24  Tex.,  355.  e  Long  v.  Merrill,  N.  C.  Term  R.. 

5  Long  v.  Merrill,  N.  C.  Term  R.,     256;   S.  C,  2  Miirph.,  339. 

112;    Power  r.  Village  of  Athens,         "  Ferrell   r.  Woodward,   20  Wis., 
19  Hun,  165.  458. 


876  IXJUXCTIOXS.  [CKAP,  XV. 

not  be  enjoined  at  the  suit  of  a  ferry  owner  from  using 
their  own  boats  for  the  transportation  of  themselves  and 
families,  the  public  not  being  permitted  to  use  them/^  And 
it  would  seem  that  the  proprietors  of  a  ferry,  even  though 
they  may  not  have  forfeited  their  franchise,  may  by  non- 
user   deprive    themselves   of   any   right   to    relief   in    equity.^ 

§  931.  Protection  extended  to  land  necessary  for  enjoy- 
ment of  franchise.  The  owner  of  a  ferry  who  has  received 
his  franchise  by  legislative  grant  is  entitled  to  the  protec- 
tion of  equity  to  restrain  the  laying  out  of  a  public  road 
through  grounds  adjoining  his  dock,  which  have  been  used 
by  him  for  a  long  period  of  years  in  connection  with  his 
ferry,    and    which    are    necessary    for    its    beneficial    use.^*' 

§  932.  Rival  ferries  on  river  between  two  states.  While, 
as  has  already  been  shown,  equity  will  lend  its  aid  b}"  in- 
junction for  the  protection  of  an  exclusive  ferry  privilege 
or  franchise,  j'et  when  plaintiff's  only  authority  is  a  charter 
from  one  state  authorizing  him  to  operate  a  ferry  upon  a 
navigable  river  which  forms  the  boundary  between  two 
states,  and  he  shows  no  exclusive  right  upon  the  opposite 
shore  in  the  other  state,  he  will  not  be  allowed  an  injunc- 
tion  to   restrain   the   operations   of  a   rival   ferry.^^ 

§  933.  County  enjoined  from  constructing  rival  ferry. 
Upon  a  bill  by  the  owner  of  a  ferry  to  enjoin  the  municipal 
authorities  of  a  county  from  constructing  another  ferry  ad- 
jacent to  his  own,  without  tendering  him  damages  ,for  the 
taking  and  injury  of  his  property,  when  upon  the  pleadings 
and  affidavits  there  is  great  doubt  whether  the  municipal 
authorities  have  taken  the  proper  legal  steps  for  condemning 
private    property,    an    injunctior    may    properly    be    granted 

«  Trent  v.  Cartersville  B.  Co.,  11  '■>  Trent  r.  Cartersville  B.  Co.,  11 
Leigh,    521.      And    see    Hunter    r.     Leigh,   521. 

Moore,  44  Ark.,  184.  if  Flanders  v.  Wood.  24  Wis.,  572. 

11  Challiss  r.   Davis,   56  Mo.,  25. 


CHAP.  XV.]  PROTECTION  OF  FRANCHISES.  877 

until  the  hearing.^^  And  the  owner  of  land  upon  both  banks 
of  a  river,  having  a  franchise  by  prescription  to  maintain  a 
public  ferry,  may  restrain  the  county  authorities  from  an 
unauthorized  attempt  to  appropriate  his  franchise  and  to 
establish   a   free   ferry.^^ 

12  County       Commissioners       v.        i^  Supervisors  v.    McFadden,    57 
Humphrey,  47  Ga.,  565.  Miss.,  618. 


CHAPTER  XVI. 

OF  INJUNCTIONS  AGAINST  THE   INFRINGEMENT   OF  PATENTS.. 

1.     Nature  axd  Grounds  of  the  Jurisdiction §  934 

II.     Effect  of  Prior  Adjudications 953 

III.     Principles  upon  aa'hich  Relief  is  Granted 960 

I.  Nature  and  Grounds  of  the  Jurisdiction. 

§  934.  Object  of  the  relief;    the  forum. 

935.  Judicial  discretion;    conditions  imposed. 

936.  Establishing  right  at  law;    recent  patents. 

937.  Province    of    injunction;     relative  convenience    and    inconven- 

ience;   solvency  of  defendant;    bond. 

938.  Plaintiff's  right  must  be  free  from  doubt;    other  considerations 

governing  preliminary  injunctions. 

939.  Controversy  as  to  right  will  bar  relief. 

940.  Presumptions  necessary  to  warrant  relief. 

941.  Acquiescence  by  the  public;    exclusive  enjoyment. 

942.  The  doctrine  further  considered. 

943.  Prior  use  of  plaintiff's  invention. 

944.  Unsupported  theory  insufficient;    English  rule. 

945.  Repeal  of  patent;    expiration;    death  of  defendant. 

946.  Enjoining  patentee   from  bringing  or  threatening  actions   for 

infringement. 

947.  Invention  must  stand  on  its  own  merits. 

948.  Plea  that  defendant  was  only  a  salesman. 

949.  Violation  of  injunction. 

950.  Property  in  manufactured  articles;    foreign  sovereign. 

951.  Master  of  vessel  enjoined  from  using  patented  machinery. 

952.  Effect  of  defendant's  consent  to  injunction. 

I5  934.  Object  of  the  relief;  the  forum.  The  jurisdiction 
of  equity  to  restrain  the  infringment  of  hitters  patent  for 
invention*  is  exercised  for  the  prevention  of  irreparable  in- 
jury, vexatious  litigation  and  a  nuiltiplieity  of  suits,  as  well 
as  for  affording  protection  to  the  rights  of  inventors.^     And 

1  2  Story's  Eq.,  §  930. 

878 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  879' 

the  preventive  relief  is  granted  in  aid  of  the  legal  right 
whose  protection  is  the  ultimate  object  sought.-  The  right 
to  interfere  by  injunction  in  this  class  of  cases  is  exercised 
only  by  the  United  States  courts,  the  state  courts  being  de- 
void of  jurisdiction.3  And  while  the  state  courts  have  un- 
questioned jurisdiction  to  determine  questions  of  title  or  of 
contract  rights  pertaining  to  letters  patent  they  have  no 
power  to  restrain  an  infringement,  even  as  an  incident  to  an 
action  growing  out  of  contracts  relating  to  patents,  the  fed- 
eral courts  alone  having  power  to  determine  questions  of  in- 
fringement.^ Nor  has  a  state  court  jurisdiction  to  restrain 
defendants  from  manufacturing  and  selling  under  letters 
patent  until  they  pay  the  royalties  claimed  by  plaintiffs  under 
a  license,  when  the  actual  controversy  is  as  to  the  validity  of 
the  patent  and  plaintiffs'  right  to  its  exclusive  use,  the  fed- 
eral   courts    having    exclusive    jurisdiction    in    such    cases.-"* 

§935.  Judicial  discretion;  conditions  imposed.  Substan- 
tially the  same  rules  prevail  in  determining  applications 
for  preliminary  injunctions  in  patent  causes  as  in  other 
cases,  and  the  granting  of  the  relief  is  a  matter  of  sound 
judicial  discretion,  and  where  greater  injury  is  likely  to 
result  to  complainants  from  withholding  the  relief  than 
to  defendants  from  granting  it,  it  may  be  allowed.*^  And 
the  court  may  impose  conditions,  either  for  granting  or  re- 
fusing the  relief,  and  may  examine  into  the  state  of  the  liti- 
gation,   the    nature    of   the    improvement   and    the    extent    of 

2  Bacon  v.  Jones,   4  Myl.  &  Cr.,  relief  must  be  presented  in  order 

436.  to   warrant   an    injunction  against 

a  Parkhurst       v.       Kinsman,     2  the  infringement  of  a  patent.  See 

Halst.    Ch.,    600;     U.     S.     Revised  Germain  r.  Wilgus,  14  C.  C.  A.,  5ul. 

Statutes,    1874,    §    4921.     And    see  67  Fed.,  597,  and  cases  cited, 
this  section  construed    in    Yueng-         4  Continental  S.  S.  Co.  r.  Clark, 

ling  V.  Johnson,  1  Hughes,  607.  It  100  N.  Y.,  365,  3  N.  E.,  335. 
has    been    held,    under    the    provi-         s  Hat  S.  M.  Co.  r.  Reinoehl,  102 

sions  of  the  act  of  Congress,  that  N.  Y.,  167,  6  N.  E.,  264. 
some  special  equitable  grounds  for        e  irwin   r.  Dane,   4   Fish.,  359. 


880  INJUNCTIONS.  [chap.  XVI. 

the  infringement,   as  well  as  the   comparative   inconvenience 
to    the    parties.'^ 

§936.  Establishing  right  at  law;  recent  patents.  The 
doctrine  was  formerly  held  in  England  that  an  injunction 
would  not  be  allowed  until  the  right  had  been  established  at 
law,  but  it  would  seem  that  the  jurisdiction  may  now  be 
exercised  on  showing  color  of  title,  coupled  with  an  asser- 
tion of  right  which  is  not  denied.^  In  this  country,  the 
jurisdiction  exercised  by  the  federal  courts  over  actions  in 
equity  pertaining  to  patents  being  derived  from  statute,  these 
courts  do  not  in  all  cases  require  a  verdict  at  law  upon  the 
title  before  granting  even  a  final  injunction.*'  And  where 
the  rights  under  the  patent  are  clear,  and  the  infringement 
is  free  from  doubt,  the  patentee  will  not  be  compelled  to 
proceed  at  law,  but  he  may  at  once  apply  to  the  equity  side 
of  the  court  for  relief.i^  And  the  allowance  of  a  jury  trial 
to  test  the  question  of  the  alleged  infringement,  on  an  ap- 
plication for  a  preliminary  injunction,  is  not  a  condition 
precedent  to  the  relief,  nor  is  it  to  be  regarded  as  a  matter 
of  right,  but  rather  as  resting  in  the  sound  discretion  of 
the  court.i^  But  if  the  patent  has  never  before  been  the 
subject  of  litigation,  either  at  law  or  in  equity,  plaintiff 
may  be  required  to  give  bond  before  the  granting  of  the 
injunction.12  And  when  there  has  been  no  adjudication  at 
law  sustaining  the  validity  of  the  patent,  the  courts  may 
require   plaintiff  to   show   an  exclusive   possession   and   exer- 

TFurbush  v.   Bradford,   1   Fish.,  v.  Grand  Avenue  R.  Co.,  33  Fed., 

317.  277. 

8  Universities    i'.    Richardson,   6  i '  Brooks  v.   Norcross,    2    Fish., 

Ves.,  689.     And  see  Hicks  v.  Rain-  661;    Potter    v.   Fuller,    lb.,     251; 

cock,  Dick.,  647.  Motte  v.  Bennett,  lb.,  642.  And  see 

«  Sickles  V.  Gloucester  Manufact-  Motte  v.  Bennett  for  an  exhaustive 

uring  Co.,  1  Fish.,  222;   Sanders  i'.  history  of  the  jurisdiction  of  equity 

Logan,  2  Fish.,  167.  in    this    class    of    cases,     both     in 

1"  Potter  r.  Muller,  2  Fish.,  465;  England  and  America. 

Shelly  r.  Brannan,  4  Fish..  198;  S.  i^  Shelly    v.    Brannan,     4     Fish., 

C,  2  Bissell,  315.     See  also  Wise  199;   S.  C,  2  Bissell,  315. 


CHAP.  XYI.]  INFEIXGEMEXT  OF  PATEXTS.  881 

•cise  of  the  right  before  granting  a  preliminary  injunction.!^ 
So  where  plaintiff's  patent  has  been  issued  less  than  two 
months,  and  he  has  exercised  no  rights  under  it,  and  there 
lias  been  no  trial  at  law,  an  interlocutory  injunction  will 
be  refused.!^  And  notwithstanding  the  English  rule  that  a 
£nal  and  perpetual  injunction  will  not  be  granted  when  the 
■answer  denies  the  validity  of  the  patent,  without  sending 
the  parties  to  law  to  decide  that  question,!^  in  this  country 
it  rests  in  the  discretion  of  the  court  to  grant  the  relief, 
with  or  without  a  trial  at  laAv.^*'  It  would  seem,  however, 
that  a  reasonable  doubt  as  to  complainant's  right,  or  the 
validity  of  the  patent,  constitutes  ground  for  requiring  a 
trial  at  law.^"  So  where  there  is  no  proof  of  public  ac- 
quiescence and  there  has  been  no  prior  adjudication  sus- 
taining the  patent  and  an  action  at  law  is  pending  between 
the  parties,  a  bill  for  an  injunction  is  properly  dismissed.!^ 

§937.  Province  of  injunction;  relative  convenience  and 
inconvenience;  solvency  of  defendajit;  bond.  The  province 
of  a  preliminary  injunction  in  a  patent  cause  is  to  preserve 
the  rights  of  the  patentee  pending  the  litigation  of  his  title. 

13  Hockholzer  v.  Eager,  2  Sawy.,  has  been  in  possession  of  it  by  hav- 

361;  Gutta  Percha  Co.  v.  Goodyear  ing  used  or  sold  it,  in  part  or  iu 

Co.,  3  Sawy.,  542.  the  whole,  the  court  will  grant  an 

i*  Brown  v.  Hinkley,  6  Fish.,  370.  injunction  and  continue  it  till  the 

15  Bacon  v.  Jones,  4  Myl.  &  Cr.,  hearing  or  further  order,  without 

436;  Renard  v.  Levinstein,  2  Hem.  sending  the  plaintiff  to  law  to  try 

&  M.,  628.  his  right.       But  if  there  appear  to 

i«  Goodyear  v.   Day.  2   Wal.   Jr.,  be    a    reasonable    doubt   as    to    the 

283;      Buchanan    v.    Howland,     5  plaintiff's  right,  or  to  the  validity 

Blatch.,  151.  of   the   patent,   the    court  will    re- 

1"  Ogle  V.   Edge,  4  Wash.   C.   C,  quire  the  plaintiff  to  try  his  title 

584.      Washington,    J.,   says:        "I  at     law,     sometimes    accompanied 

take  the  rule  to  be  in  cases  of  in-  with  an  order  to  expediate  the  trial, 

junctions    in    patent    cases,     that  and  will  permit  him  to  return  for 

■where  the  bill  states  a  clear  right  an  account  in  case  the  trial  at  law 

to    the   thing   patented,    which    to-  should  be  in  his  favor." 

gether   with    the   alleged    infringe-  is  Germain  r.  Wilgus,  14  C.  C.  A., 

ment  is  verified  by  affidavit,  if  he  561,  67  Fed.,  597. 

56 


882  INJUNCTIONS.  [chap.  XVI. 

If  his  title  has  alreadj^  been  fully  established,  or  is  so  clear 
as  to  preclude  a  reasonable  doubt  of  its  validity,  a  prelimi- 
nary injunction  may  be  granted,  as  in  the  case  of  a  final 
injunction,  regardless  of  the  injury  to  defendant,  but  the 
case  must  be  substantially  free  from  doubt  to  warrant  this 
course.^ ^  And  an  important  consideration  in  the  granting 
of  preliminary  injunctions  is  that  of  the  relative  conven- 
ience and  convenience  of  the  parties ;  and  if  it  appears  that 
the  granting  of  the  writ  will  result  in  great  injury  to  the 
defendant  as  compared  with  the  benefit  accruing  to  the 
plaintiff,  relief  may  be  denied  in  the  first  instance ;  while, 
upon  the  other  hand,  if  the  plaintiff's  rights  will  be  greatly 
jeopardized  by  the  withholding  of  the  writ,  with  compara- 
tively little  corresponding  advantage  to  the  defendant,  the 
injunction  may  properly  be  granted.-*^  So  w^iere  the  grant- 
ing of  the  writ  will  result  in  great  inconvenience  and  injury 
to  the  defendant  or  to  the  public  generally  as  compared 
with  any  benefit  which  may  come  to  the  plaintiff  and  it 
cleairly  appears  that  the  defendant  is  perfectly  solvent  and 
abundantly  able  to  respond  in  damages  for  any  judgment 
which  may  be  rendered  against  him,  a  preliminary  injunction 
should  be  denied.^i  On  the  contrary,  where  the  court,  upon 
balancing  the  relative  convenience  and  inconvenience  to  the 
parties,  denies  or  dissolves  a  preliminary  injunction,  it  may,  in 
so  doing,  re<iuire  of  the  defendant  the  filing  of  a  bond  condi- 
tioned for  the  payment  of  any  damages  which  may  be  assessed 
upon  the  final  hearing.22    But  where  the  granting  of  the  writ 

i»  Morris  v.  Lowell  Manufactur-  Lowell  Mfg.  Co.,  3  Fish.,  67.    Upoa 

ing    Co.,    3    Fish.,    67.       And    see  the  subject  generally,  see,  ante,    § 

Howe  r.  Morton,  1  Fish.,  586.  13. 

-"  Blount  V.  Societe  Anonyme,  3  -1  Southwestern   B.   E.  L.    &    P. 

C.  C.  A.,  455,  53  Fed.,  98;   Consoli-  Co.  v.  Louisiana  E.  L.  Co.,  45  Fed., 

dated   R.   M.   Co.  v.   Richmond   C.  893;  Whitcomb  v.  Girard  Coal  Co., 

M.  Works,  40  Fed.,  474;   Columbia  47  Fed.,  315. 

Wire  Co.  v.  Freeman  Wire  Co.,  71  --  Consolidated     R.     M.     Co.     i\ 

Fed.,  302;  National  H.-P.  M.  Co.  v.  Richmond   C.   M.   Works,   40  Fed., 

Hedden,    29    Fed.,    147;    Morris   v.  474. 


CHAP.' XVI. j  IXFKIXGEMEXT  OF  PATENTS.  883 

would  be  more  likely  to  produce  than  to  prevent  irreparable 
mischief,  neither  an  absolute  nor  a  conditional  injunction  will 
be  allowed.-"  And  where  a  patent  is  sustained  on  appeal  and 
the  decree  of  the  lower  court  is  reversed  and  the  cause  remanded 
for  future  proceedings  not  inconsistent  with  the  opinion,  an 
injunction  will  not  be  granted  as  a  matter  of  course,  but  it 
still  rests  in  the  sound  discretion  of  the  chancellor  as  to 
whether  or  not  the  writ  shall  issue.-^  In  all  such  cases, 
there  being  an  element  of  discretion  which  enters  largely 
into  the  consideration  of  the  motion  for  a  preliminary  in- 
junction, the  patentee  is  only  entitled  to  the  best  judg- 
ment of  the  court  upon  a  question  of  judicial  discretion,  and 
not  absolutely  to  the  injunction  on  any  given  state  of  facts.-^ 

§938.  Plaintiff's  right  must  be  free  from  doubt;  other 
considerations  governing-  preliminary  injunctions.  An  in- 
terlocutory injunction  against  the  infringement  of  a  patent 
will  not  be  allowed  unless  complainant's  title  and  defendant's 
infringement  are  either  admitted  or  are  so  clear  and  palpable 
that  the  court  can  entertain  no  doubt  on  the  subject.-*^  And 
whenever,  upon  the  facts  presented,  a  fair  and  reasonable 
doubt  exists  as  to  whether  defendant  has  actually  been 
guilty  of  an  infringement,  or  where  the  right  is,  in  point 
of  law,  at  least  doubtful,  and  the  questions  involved  are  ex- 
clusively for  a  jury,  or  where  a  reasonable  doubt  exists  as 
to  the  originality  and  novelty  of  complainant's  invention,  or 
as  to  the  substantial  identity  between  the  articles  manu- 
factured by  defendant  and  those  of  complainant,  a  prelimi- 
nary injunction   will   be   withheld.-^      So   when   the   issue   in 

23  Day    V.    Candee,    3   Fish.,    9.  Anonyme,  3  C.  C.  A.,  455,  53  Fed., 

2^  In  re  Chicago  Sugar  Refining  98;    Blakey   v.   National    Mfg.   Co., 

Co.,  31  C.  C.  A.,  221,  87  Fed.,  750.  37  C.  C.  A.,  27,  95  Fed.,  136. 

25  Potter  y.  Whitney,  3  Fish.,  77;  27  Dodge  v.   Card,   2  Fish.,   116; 

S.  C,  1  Lowell,  87.  Sullivan  v.  Redfield,  1  Paine,  441 ; 

2G  Parker    v.   Sears,   1   Fish.,   93;  Winans    v.    Eaton,    1    Fish.,    181; 

American  Co.  r.  City  of  Elizabeth,  Illingworth    r.    Spaulding,    9    Fed., 

4    Fish.,    189;     Blount    r.     Societe  154;    Cross    r.    Livermore,    9   Fed., 


884  INJUNCTIONS.  [chap.  XVI. 

the  cause  as  to  the  validity  of  the  patent  is  new,  and  not 
only  is  the  novelty  of  the  invention  denied,  but  a  fair  doubt 
as  to  its  novelty  is  raised  by  affidavits  introduced  to  show 
a  prior  use,  and  no  public  acquiescence  in  plaintiff's  claim 
is  shown,  equity  will  refuse  an  injunction  in  limine?^  So, 
too,  if  it  does  not  satisfactorily  appear  that  complainant  is 
the  first  and  sole  inventor  of  the  improvements  claimed 
by  his  patent,  the  court  will  not  interfere  in  the  first  in- 
stance.-^ And  where  a  preliminary  injunction  has  already 
been  granted,  but  the  evidence  is  doubtful  as  to  the  origi- 
nality of  the  patent,  the  injunction  may  be  dissolved,  de- 
fendants being  required  meanwhile  to  keep  an  account  of 
their  sales.^^  And  it  may  be  asserted  generally  that  where 
there  has  been  no  prior  adjudication  either  at  law  or  in 
equity  sustaining  the  validity  of  a  patent  and  no  public  ac- 
quiescence is  shown  upon  which  the  presumption  of  its  valid- 
ity maybe  based,  and  where  there  is  doubt  as  to  the  patent- 
ability of  the  article  and  the  patent  itself  is  of  very  recent 
date,  and  where  the  question  of  infringement  is  involved  in 
doubt  and  is  not  established  by  clear  and  satisfactory  evi- 
dence, and  it  appears  that  the  defendant  is  abundantly  able 
to  respond  in  damages,  all  of  these  considerations,  taken  in- 
dividually or  collectively,  aft'ord  sufficient  ground  for  refus- 
ing  an   injunction    in   the    first   instance.^^      And   where   the 

607;  Bradley  &  H.  M.  Co.  v.  Charles  23  C.  C.  A.,  171,  77  Fed.,  285;  Wil- 

Parker  Co.,  17  Fed.,  240.  son  v.  Consolidated   S.   Co.,   31   C. 

28Mowry   r.   Grand   Street  &  N.  C.  A.,  533,  88  Fed.,  286;   Smith  v. 

R.    Co.,    10    Blatch.,    89;    S.    C,   5  Meriden  Brittania  Co.,  39  C.  C.  A., 

Fish.,  586.  3.2,  97  Fed.,  987;   Reed  Mfg.  Co.  v. 

29  Thomas  v.  Weeks,  2  Paine,  92.  Smith  &  W.  Co.,  46  C.  C.  A.,  601, 

30  Sheriff  v.  Coates,  1  Russ.  &  107  Fed.,  719;  Newhall  v.  McCabe 
M.,  159.  H.  Mfg.  Co.,  60  C.  C.  A.,  629,  12o 

31  Standard  Elevator  Co.  v.  Fed.,  919;  National  H.-P.  M.  Co.  v. 
Crane  Elevator  Co.,  6  C.  C.  A.,  100,  Hedden,  29  Fed.,  147;  Dickerson 
56  Fed.,  718;  George  Ertel  Co.  v.  v.  De  La  Vergne  Ref.  Co.,  35  Fed., 
Stahl,  13  C.  C.  A.,  29,  65  Fed.,  517;  143;  Raymond  v.  Boston  Woven 
Williams  v.  Brietling  M.  Mfg.  Co.,  Hose  Co.,   39   Fed.,   365;    Johnson 


CHAP.  XVI.]  IXFRIXGEMEXT  OF  PATEXTS.  885 

answer  denies  all  the  material  allegations  of  the  bill  and  es- 
pecially those  of  infringement  and  charges  want  of  novelty 
and  prior  use  and  is  supported  by  affidavits  strongly  corrob- 
orative of  these  charges,  a  preliminary  injunction  should 
be  denied.^-  And  where  the  question  as  to  the  validity  of 
the  patent  is  in  serious  doubt,  preliminary  relief  may  be 
refused  although  the  fact  of  infringement  is  not  denied  by 
the  answer  or  otherwise  put  in  issue.^^  And  since  the  object 
of  a  preliminary  injunction  is  to  prevent  pecuniary  damage, 
it  is  held  that,  where  there  is  no  showing  made  in  the  bill 
that  the  plaintift"s  patent  is  a  source  of  profit  to  him,  an 
injunction  should  be  denied  in  limine,  although  the  bill  may 
be  sufficient  to  justify  a  perpetual  injunction  upon  final 
hearing,  the  right  to  the  ultimate  relief  in  such  case  not 
being  dependent  upon  the  amount  or  magnitude  of  the  in- 
jury to   the  plaintiff.3* 

§  939.  Controversy  as  to  right  will  bar  relief.  So  long 
as  there  is  a  substantial  controversy  as  to  the  equities  of 
the  parties,  the  court  will  not  dispose  of  those  equities  upon 
a  motion  for  an  interlocutory  injunction,  which  does  not  per- 
mit the  questions  involved  to  be  inquired  of  and  defined 
accurately  according  to  the  approved  usages  of  chancery,  and 
interlocutory  relief  will  be  refused,  especially  when  the 
granting  of  the  application  might  seriously  imperil  defend- 
ant's rights,  and  its  refusal  will  not  injure  plaintiff.^^  And 
if  the  patent  itself  is  of  recent  date,  and  the  specifications 
are   obscure   and   the   proof   of   infringement   is   meagre   and 

t;. .  Aldrich,   40   Fed.,  675;    Kane  v.  32  standard    Paint    Co.     v.     Rey- 

Huggins  Cracker  Co.,  44  Fed.,  287;  nolds,  43  Fed.,  304. 

Dietz   V.  Ham   Mfg.   Co.,  47    Fed.,  33  Nilsson   v.   Jefferson,   78  Fed... 

320;  Palmer  Pneumatic  Tire  Co.  v.  366. 

Newton    Rubber    Works,    73    Fed.,  34  Wirt  r.  Hicks,  46  Fed.,  71. 

218;  Richmond  M.  Co.  i\  De  Clyne,  35  gmitli  r.  Cummings,    1    Fish., 

90    Fed.,    661;    Planters   Compress  152;    Pullman    v.    Baltimore   &   O. 

Co.  V.  More  &  Co.,  106  Fed.,  500;  R.    Co.,   4    Hughes,   236;    S.    C,   5 

Bradley  v.  Eccles,  120  Fed.,  947.  Fed.,  72. 


886  IXJUXCTIONS.  [chap.  XVI. 

unsatisfactory,  an  injunction  will  not  be  allowed  even  upon 
final  hearing.  But  in  such  case  the  bill  may  be  retained  and 
complainant  required  to  bring  an  action  at  law  within  a 
reasonable  time.^*^  So  when  plaintiff's  patent  is  recent  and 
its  validity  is  disputed  by  defendants,  and  the  facts  upon 
which  plaintiff's  claim  to  an  injunction  is  based  are  not 
clearly  established  and  are  involved  in  much  doubt,  the  court 
may  properly  refuse  an  interlocutory  injunction.^^  And 
although  plaintiff's  rights  under  the  patent  may  be  clear, 
it  is  nevertheless  error  to  grant  a  preliminary  injunction 
upon  a  mere  allegation  of  infringement  where  no  proof  of 
actual    infringement    is   presented.^*^ 

§  940.  Presumptions  necessary  to  warrant  relief.  Tlie  pre- 
sumptions in  favor  of  the  novelty  of  a  patent,  sufficient  to 
constitute  the  foundation  for  a  preliminary  injunction,  may 
be  some  or  all  of  the  following:  the  oath  of  the  patentee 
that  he  was  the  original  inventor;  the  granting  of  the  patent 
after  full  investigation;  undisturbed  enjoyment  by  the 
patentee  of  the  Exclusive  rights  granted  by  the  patent, 
coupled  with  acquiescence  on  the  part  of  the  public ;  direct 
adjudications  at  law  or  in  equity  establishing  its  validity, 
and  prior  injunctions  restraining  its  infringement.  When 
such  grounds  of  presumption  co-exist  in  favor  of  the  novelty 
of  a  patented  invention,  an  injunction  will  not  be  refused, 
or,  if  granted,  "will  not  be  dissolved  except  upon  the  most 
conclusive   evidence   impeaching  the   patent.^'^ 

§941.  Acquiescence  by  the  public;  exclusive  enjoyment. 
Acquiescence  on  the  part  of  the  public  in  complainant's  use 

•"•«  Muscan  Hair  Mfg.  Co.  v.  Amer-  120.     And  see  Orr  r.  Littlefield,  1 

lean  Hair  Mfg.  Co.,  1  Fish.,  320.  Woodb.  &  M.,  13;    Ogle  r.  Edge,  4 

••!T  McGuire  v.  Eames,  15  Blatch.,  Wash.  C.  C,  584;  Doughty  v.  West, 

312.  2    Fish.,    553;    Grover   Co.    r.    Wil- 

■'i«  Seiler     v.     Fuller     &  .Johnson  liams,  2  Fish..  133;    Blount  r.  So- 

Mfg.  Co.,  42  C.  C.  A..  386,  102  Fed,,  ciete  Anonyme,  3  C.  C.  A.,  455,  53 

344.  Fed.,  98. 

30  Hussey   v.   Whiteley,    2   Fish., 


CHAP.  XVI.] 


INFRINGEMENT  OF  PATENTS. 


887 


of  his  patented  invention  is  an  important  consideration  in 
determining  a  motion  for  an  injunction  against  the  infringe- 
ment of  a  patent.  And  where  the  party  aggrieved  can  show 
an  undisturbed  user  and  possession  for  a  reasonable  time 
he  is  entitled  to  the  relief.^^  And  this  exclusive  possession, 
if  of  sufficient  duration,  may  warrant  the  relief,  even  in  the 
absence  of  any  previous  adjudications  in  favor  of  the  validity 


■40  Orr  V.  Littlefield,  1  Woodb.  & 
M.,  13;  Hill  V.  Thompson,  3  Meriv., 
622;  Stevens  v.  Keating,  2  Ph., 
333;  Ogle  r.  Edge,  4  Wash.  C.  C, 
584;  Foster  o.  Moore,  1  Curt.  C.  C, 
279;  Isaacs  v.  Cooper,  4  Wash.  C. 
C,  259;  Washburn  v.  Gould,  3 
Story,  156,  169;  Bickford  v. 
Skewes,  Web.  P.  C,  211;  Good- 
year V.  The  Central  R.  R.  of  New 
Jersey,  1  Fish.,  626;  Potter  v.  Hol- 
land, lb.,  382;  Blount  v.  Societe 
Anonyme,  3  C.  C.  A.,  455,  53  Fed., 
98.  "The  reason  for  the  presump- 
tion in  favor  of  the  valadity  of 
the  grant  is  the  acquiescence  of 
the  public  in  the  exclusive  right 
of  the  patentee,  which,  it  may  rea- 
sonably be  assumed,  would  not 
exist  unless  the  right  was  well 
founded."  Story,  J.,  in  Foster  v. 
Moore,  supra.  The  principles  upon 
which  a  court  of  equity  will  inter- 
fere for  the  protection  of  a  patent 
before  the  right  has  been  estab- 
lished at  law  are  well  stated  by 
the  Vice  Chancellor  in  Caldwell  v. 
Vanlissengen,  9  Hare,  415,  as  fol- 
lows: "The  question  whether  the 
court  will  interfere  to  protect  a 
patentee  before  he  has  established 
his  right  at  law,  or  will  suspend  its 
interference  until  the  right  at  law 
has  been  established,  appears  to  me 
to  depend  upon  very  simple  prin- 
ciples.    It  is  part  of  the  duty  of 


this  court  to  protect  property  pend- 
ing litigation;  but  when  it  is 
called  upon  to  exercise  that  duty, 
the  court  requires  some  proof  of 
title  in  the  party  who  calls  for  its 
interference.  In  the  case  of  a  new 
patent,  this  proof  is  wanting;  the 
public  whose  interests  are  affected 
by  the  patent,  have  had  no  oppor- 
tunity of  contesting  the  validity 
of  the  patentee's  title,  and  the  court 
therefore  refuses  to  interfere  until 
his  right  has  been  established  at 
law.  But  in  a  case  where  there 
has  been  long  enjoyment  under  the 
patent  (the  enjoyment  of  course 
including  use),  the  public  have  had 
the  opportunity  of  contesting  the 
patent;  and  the  fact  of  their  not 
having  done  so  successfully  affords 
at  least  prima  facie  evidence  that 
the  title  of  the  patentee  is  good; 
and  the  court  therefore  interferes 
before  the  right  is  established  at 
law.  In  the  present  case,  I  think 
that  the  plaintiffs  have  proved  such 
a  case  of  enjoyment  under  the 
patent,  and  of  their  title  having 
been  maintained  at  law  against  the 
several  attempts  which  have  been 
made  to  impeach  it,  that  the  court 
is  bound  at  once  to  interfere  for 
their  protection,  unless  there  are 
other  sufficient  grounds  for  with- 
holding its  interference." 


IXJUNX'TIOXS.  [chap,  XVI. 

of  the  patent.'*^  But  in  order  to  take  the  place  of  such  prior 
adjudications,  the  acquiescence  must  be  continued  so  long 
and  under  such  circumstances  as  to  induce  the  belief  that 
infringement  would  have  occurred  were  it  not  for  a  settled 
belief  upon  the  part  of  the  public  that  the  patent  was  valid 
and  must  be  respected.^-  While  the  courts  have  not  at- 
tempted to  fix  any  definite  rule  as  to  the  length  of  time  dur- 
ing which  the  exclusive  use  and  enjoyment  of  the  right  must 
have  been  continued,  it  must  be  sufficient  to  raise  a  presump- 
tion in  favor  of  the  validity  of  the  patent.*^  And  such 
presumption  is  greatly  strengthened  by  former  adjudications 
in  support  of  the  patent.^^  So  when  plaintiff  has  long  been 
in  the  enjoyment  of  his  rights  under  the  patent,  and  the 
question  of  infringement  is  free  from  doubt,  it  is  proper 
to  grant  an  injunction.^s  j^^^  when  the  infringement  is 
clear,  and  plaintiffs  have  proven  an  uninterrupted  use  for 
many  years,  and  have  established  their  patent  in  an  action 
at  law,  and  have  also  procured  its  extension,  their  right  to 
an  injunction  is  clear  and  undoubted.*^  So  when  plaintiff 
has  for  a  long  period  been  in  exclusive  possession  under  his 
patent,  with  the  acquiescence  of  the  public  in  his  rights, 
and  the  novelty  of  his  invention  is  not  questioned,  except 
by  the  claim  that  it  was  anticipated  by  certain  patents  which 
have  been  repeatedly  construed  by  the  patent  office  as  not 
anticipating  plaintiff's  invention,  in  which  construction  the 
court  concurs,  it  is  proper  to  grant  the  injunction.^'^ 

41  Goodyear  v.  Central  R.  R.  of  ^ipotter  v.  Muller,  2  Fish.,  465; 
New  Jersey,  1  Fish.,  626.  Potter  v.  Holland,  1  Fish.,  382. 

42  Consolidated   Fastener    Co.   v.  4"- Chase  v.  Wesson,  6  Fish.,  517; 
American    Fastener    Co.,  94   Fed.,  S.  C,  1  Holmes,  274. 

523.  «  Cook  V.  Ernest,  5  Fish.,  396;  S. 

•»3  Potter  V.  Muller,  2  Fish.,  465.  C.  sub  nom.  McComb  v.  Ernest,  1 

And  it  has  been  held  that  such  pos-  Woods,  195 

session   for  eight  years   was  suffi-  »?  Miller    v.    Androscoggin    Pulp 

cient  evidence,  prima  facie,  to  war-  Co.,  5  Fish,  340;   S.  C,  1  Holmes^ 

rant  an  injuction  previous  to  a  trial  142. 
at  law.     Foster  v.  Moore,  1  Curt. 
C.  C.  279. 


CHAP.  XVI.]  INFEINGEMEXT  OF  PATEXTS.  889' 

§  942.  The  doctrine  further  considered.  Where,  however, 
plaintiff's  allegations  of  exclusive  possession  are  met  and 
avoided  by  averments  and  proof  of  a  more  peaceable  and 
exclusive  possession  by  defendants,  under  patents  purchased 
and  used  by  them,  no  injunction  will  be  allowed.-*^  And 
when  plaintiff's  patent  has  never  been  adjudged  valid  in  any 
action,  mere  lapse  of  time  is  not  considered  sufficient  evi- 
dence of  public  acquiescence  in  and  recognition  of  his  right 
to  warrant  an  injunction;  but  the  acquiescence  must  be  ac- 
companied by  circumstances  indicating  that  it  would  not  have 
occurred  had  any  reasonable  doubt  existed  as  to  the  validity 
of  the  patent.^^  And  when  plaintiff  fails  to  show  any  ex- 
clusive possession  of  the  invention  for  a  considerable  length 
of  time,  accompanied  by  acquiescence  on  the  part  of  the 
public,  and  when  he  shows  no  decree  or  judgment  sustaining- 
his  patent  and  no  irreparable  injury  is  shown  as  likely  to 
result  if  the  injunction  is  refused,  the  court  will  decline  ta- 
interfere  in  limine.^^ 

§  943.  Prior  use  of  plaintiff's  invention.  Upon  a  motion 
for  a  preliminary  injunction  to  restrain  the  violation  of  a 
patent,  an  affidavit  filed  by  defendant  in  opposition  to  the 
motion,  alleging  upon  information  and  belief  that  plaintiff' 's. 
invention  was  used  and  sold  long  prior  to  his  patent,  will 
not  avail;  since  if  defendant  has  such  information  he  should 
disclose  it  fully,  and  he  can  not  be  permitted  to  swear 
merely  to  his  conclusion  and  withhold  the  particulars  as. 
to  the  information.  But  w'hen  a  prior  use  of  the  same 
article  is  afterw^ard  shown  by  affidavit  in  detail,  and  speci- 
mens of  the  article  are  produced,  such  doubt  is  thrown  over 
the  question  of  novelty  as  to  entitle  defendants  to  a  dissolu- 
tion   of    the    injunction.^! 

48  Parker  v.  Sears,  1  Fish.,  93.  fringement  of  a  patent  when  the; 

49  Guidet  V.   Palmer,  10  Blatch.,    public  interest  is  concerned. 

217;    S.   C,   6   Fish.,   82.     And   see  so  Earth  Closet  Co.  v.  Fenner,  5- 

this  case  as  to  the  facts  upon  which  Fish.,  15. 

the  court  may  refuse  an  interloc-  si  Young  v.  Lippman,  9  Blatch.^ 

utory    injunction    against    the    in-  277;  S.  C,  5  Fish.,  230. 


890  INJUNCTIONS.  [chap.  XVI. 

§  944.     Unsupported  theory  insufficient ;   English  rule.     It 

is  not  regarded  as  proper  to  sustain  a  motion  for  a  pre- 
liminary injunction  in  a  patent  cause  upon  a  theory  of  plain- 
tiff's invention,  which,  although  it  may  be  true,  is  not  sup- 
ported by  affidavits.'^-  And  under  the  practice  of  the  Eng- 
lish Court  of  Chancery,  a  plaintiff  seeking  to  restrain  the 
infringement  of  his  patent  was  required  to  state  that  his 
invention  was  new,  or  had  never  been  practiced  in  the  king- 
dom at  the  date  of  his  patent.^^ 

§945.  Repeal  of  patent;  expiration;  death  of  defendant. 
Upon  a  bill  to  procure  the  repeal  of  an  interfering  patent 
it  is  competent  for  the  court  to  grant  an  injunction  in  con- 
nection with  the  other  relief  sought  by  the  action.^^  But  in 
an  action  brought  by  the  United  States  to  repeal  letters 
patent  for  an  invention,  an  injunction  will  not  be  granted 
pendente  lite  to  restrain  defendant  from  prosecuting  actions 
for  infringement,  since  the  government  has  no  interest  in 
such  actions.^-"'  And  where  the  bill  is  not  filed  until  after 
the  expiration  of  the  patent  it  can  not  be  maintained  as  a 
bill  for  an  injunction.^^  And  where  the  record  shows  the 
death  of  defendant,  if  there  is  no  proof  of  infringement  by 
his  executor,  no  injunction  will  be  granted  against  such 
executor.^''' 

§  946.  Enjoining-  patentee  from  bringing  or  threatening 
actions  for  infringement.  Since  the  granting  of  letters 
patent  confers  upon  the  patentee  the  right  to  institute  ac- 
tions for  infringement  of  his  patent,  it  follows  that  a  court 
of  equity  will  not,  in  the  absence  of  bad  faith,  interfere  by 
injunction  to  restrain  him  from  bringing  such  actions  before 

•"•-'  American  Co.   v.  Sullivan  Co.,  ^5  United    States   v.   Colgate,    22 

14  Blatch.,  119.  Blatch.,  412. 

-'"  Sturz  V.  De  La  Riie^  5  Russ.,  •^•«  "Vaughn  v.  Central  Pacific  R. 

322.  And  see  Hill  r.  Thompson,  3  Co.,  4  Sawy.,  280.    And  see  Root  v. 

Merw.,    622.  Railway  Co.,  105  U.  S.,  189.     And 

5t  Ayling  v.  Hull,  2  Cliff.,  494.  see,  post.  §  891  et  seq. 

67  Draper  v.  Hudson,  6  Fish.,  327. 


CHAP.  XVI.] 


INFEINGEMENT  OF  PATENTS. 


891 


his  patent  has  been  adjudged  to  be  invalid.-'"'^  And  a  de- 
fendant, who  has  been  found  guilty  of  infringing  letters 
patent  can  not  restrain  the  patentee  from  interfering  with 
customers  of  such  defendant  in  the  use  of  the  manufactured 
article.^^  So,  in  tlie  absence  of  wilful  or  malicious  motive, 
complainant  who  has  commenced  an  action  for  an  injunction 
against  infringement  will  not  be  enjoined  from  sending 
letters  and  circulars  to  defendant's  customers  warning  them 
to  cease  the  use  of  the  alleged  infringing  article  and  threat- 
ening them  with  suit  if  they  do  not  desist.*^*^  But  a  court  of 
equity  may,  by  petition  filed  in  an  action  for  an  injunction 
against  infringement   of   a   patent,   enjoin   complainant   from 


58  Asbestos  Felting  Co.  v.  U.  S.  & 
F.  S.  Felting  Co.,  13  Blatch.,  453; 
Kelley  v.  Ypsilanti  Mfg.  Co.,  44 
Fed.,  19,  10  L.  R.  A.,  686;  Comput- 
ing Scale  Co.  v.  National  C.  S.  Co., 
79  Fed.,  962.  In  Kelley  v.  Ypsilanti 
Mfg.  Co.,  44  Fed.,  19,  sxipra,  com- 
plainant had  filed  a  bill  for  an  in- 
junction against  infringement  of  a 
patent  and  had  also  commenced 
three  suits  in  other  courts  against 
three  of  defendant's  customers  and 
was  about  to  commence  others, 
which  defendant  was  bound  to  de- 
fend. Complainant  had  also  sent 
numerous  letters  to  defendant's  cus- 
tomers informing  them  that  they 
were  infringing  and  threatening 
suit  if  they  did  not  cease.  Defend- 
ant filed  a  petition  herein  seeking 
to  enjoin  such  actions  pending  and 
prospective.  As  to  the  three  suits 
already  begun,  it  was  held  that 
complainant  should  not  be  enjoined 
for  three  reasons:  first,  because 
those  actions  had  been  be- 
gun before  this  suit;  second,  be- 
cause comity  required  that  the 
application    should    be    made    in 


those  courts;  and,  third,  because, 
complainant  being  a  non-resident 
of  this  district,  an  injunction  could 
be  enforced  only  by  staying  pro- 
cedings  in  this  court,  while  com- 
plainant might  still  elect  to  pro- 
ceed in  the  other  courts,  which 
would  be  under  no  obligation  to 
take  notice  of  the  injunction  in  this 
action.  As  to  the  actions  not  yet 
begun,  it  was  held  that  the  de- 
fendant was  not  entitled  to  an 
injunction,  this  being  by  analogy 
to  the  rule  that  the  recovery  of 
damages  from  the  manufacturer  of 
an  infringing  article  does  not  pre- 
clude a  recovery  also  from  the 
manufacturer's  vendee  for  his  prof- 
its in  reselling  the  article.  As  to 
the  letters  and  notices  which  com- 
plainant was  sending  to  defen- 
dant's customers,  it  was  held  that 
this  afforded  no  ground  for  an 
injunction  in  the  absence  of  evi- 
dence showing  that  it  was  done 
wilfully  or  maliciously. 

■-•n  Tuttle  V.  Matthews,  24  Blatch., 
16. 

CO  Kelley   r.   Ypsilanti   Mfg.    Co., 


892 


INJUNCTIONS.  [chap,  XVI.. 


prosecuting  actions  against  purchasers  and  users  of  the  al- 
leged infringing  article  where  it  appears  clearly  that  such 
suits  are  oppressive  and  vexatious  and  are  brought  for  the 
purpose  of  harassing  and  annoying  the  defendant/' ^  But 
when  a  patentee,  as  a  condition  of  obtaining  an  extension  of 
his  patent,  files  a  disclaimer  as  to  a  part  of  his  invention, 
and  after  procuring  the  extension  he  surrenders  his  patent 
and  procures  a  re-issue  embracing  the  disclaimed  invention, 
he  can  not  maintain  a  bill  to  enjoin  its  infringement.'^^ 

§  947.  Invention  must  stand  on  its  own  merits.  The  fact 
ihat  plaintiff,  who  seeks  an  injunction  against  the  infringe- 
ment of  his  patent,  does  not  or  can  not  make  his  patented 
article  without  using  the  apparatus  covered  by  another 
patent  under  which  defendant  claims,  can  not  be  considered 
by  the  court  upon  an  application  for  an  injunction,  since  the 
case  of  each  invention  must  be  treated  independently  upon 
its  o^vn  merits  when  presented  for  adjudication-^^ 

§  948.  Plea  that  defendant  was  only  a  salesman.  The  pen- 
dency of  a  plea  by  defendant  to  a  bill  seeking  an  injunction 
to  restrain  him  from  infringing  plaintiff's  patent,  in  which 
he  avers  that  he  acted  only  as  a  salesman  in  selling  the 
patented  article,  having  no  interest  in  the  business  in  ques- 
tion except  as  an  employe,  will  not  prevent  the  granting  of 
an  injunction;  nor  will  the  court  be  prevented  from  grant- 
ing the  relief  by  the  fact  that  such  plea  has  been  set  down 
for  hearing,  but  has  not  yet  been  heard.^'^ 

§  949.  Violation  of  injunction.  A  defendant  who  has  been 
enjoined  from  using  plaintiff' 's  patent  is  not  at  liberty  to- 
disregard  the  injunction  by  merely  taking  certain  parts  and 

44  Fed.,  19,  10  L.  R.  A.,  686;  New        '^^  Leggett   v.  Avery,   101   U.    S., 
York  Filter  Co.  v.  Schwarzwalder,     256. 

58  Fed.,  .577;  Computing  Scale  Co.-     '•!  Young  v.  Lippman,   9    Blatch., 
V.  National  C.  S.  Co.,  79  Fed.,  962.     277;  S.  C,  5  Fish.,  230. 

«i  National  Cash  Register  Co.  v.  «'  Maltby  v.  Bobo,  14  Blatch.,  53. 
Boston  C.  I.  &  R.  Co.,  41  Fed.,  51. 


CHAP.  XYI.]  INFRINGEMENT  OF  PATENTS.  893 

improvements  from  his  machine  which  he  conceives  to  be 
covered  by  plaintiff's  patent,  and  then  to  continue  the 
manufacture  of  the  patented  article.  Nor  is  the  fact  that 
he  has  thus  acted  under  the  advice  of  counsel  a  sufficient 
justification  for  thus  disobeying  the  injunction,  the  proper 
course  being  to  take  the  judgment  of  the  court  upon  the 
matter  by  a  motion  to  dissolve,  or  otherwise.^^  But  where, 
after  a  final  decree  restraining  an  infringement  of  plain- 
tiff's patent,  defendants  manufacture  a  machine  which  had 
not  been  made  or  sold  before  the  decree  in  the  cause,  and 
the  differences  between  which  and  plaintiff' 's  invention  are 
not  merely  colorable  but  present  questions  w^hich  have  not 
before  been  raised  between  the  parties,  the  court  will  not 
■decide  such  questions  upon  a  motion  for  an  attachment  for 
&  violation  of  the  injunction,  but  will  leave  it  to  be  de- 
Ntermined  by  an  original  action  for  that  purpose.*5° 

§  950.     Property   in   manufactured,   articles ;    foreign   sov- 

•ereign.  Notwithstanding  the  rights  and  privileges  of  the 
patentee,  it  is  held  that  the  property  in  articles  which  are 
manufactured  in  violation  of  a  patent  is  in  the  infringer. 
The  court  will  not,  therefore,  interfere  by  injunction  to  pre- 
vent a  foreign  sovereign  from  removing  his  property  from 
the  country  upon  the  ground  that  such  property  infringes 
plaintiff's  patent.  And  this  is  true,  even  though  such  sov- 
ereign has  voluntarily  made  himself  a  party  defendant  to  the 
action,  and  submitted  to  the  jurisdiction  of  the  court,  since 
the  courts  will  not  interfere  with  the  property  of  foreign 
sovereigns.'^'''  . 

§  951.  Master  of  vessel  enjoined  from  using  patented 
machinery.  A  master  of  a  vessel  who  is  in  possession  of 
the  vessel,  which  is  fitted  with  machinery  which  is  clearly 

63  Hamilton  i:  Simons,  5  Bissell,  e-  Vavasseur  v.  Krupp,  9  Ch.  D.. 
77.  351. 

G6  Liddle  v.  Cory,  7  Blatcti.,  1. 


894  IXJUNCTIONS.  [chap.  XVI. 

an  infringement  of  plaintiff's  patent,  may  be  enjoined  from 
using  such  machinery,  even  though  the  vessel  was  so  fitted 
before  he  took  command,  and  although  he  is  not  a  part 
owner  of  the  vessel.^^ 

§952.  Effect  of  defendant's  consent  to  injunction.  When 
after  the  argument  of  a  motion  for  an  injunction  in  a  patent 
cause,  and  after  the  motion  is  submitted,  defendants  file 
their  written  consent  to  the  granting  of  the  motion,  the 
court  will  grant  the  injunction  if  desired  upon  such  consent, 
but  will  not  express  any  opinion  upon  the  merits  of  the 
action,  there  being  no  longer  any  real  contest  between  the 
parties.^^ 

68  Adair  v.  Young,  '12  Ch.  D.,  13.         eo  American  M.  P.  Co.  v.  Vail,  15 

Blatch.,  315. 


CHAP.  XVI.]  IXFEIXGEMEXT  OF  PATENTS.  895 


II.  Effect  of  Prior  Adjudication. 

§  953.  The  general  doctrine  stated. 

934.  Applications  of  the  doctrine. 

955.  Effect  on  appeal. 

956.  Extension  and  re-issue. 

957.  Trial  at  law;    award. 

958.  Limitations  upon  the  doctrine. 

959.  Effect  of  re-issue  covering  wider  ground. 

§  953.  The  general  doctrine  stated.  Previous  adjudica- 
tions in  favor  of  the  validity  of  the  patent  whose  protection 
is  sought  by  injunction  afford  strong  foundation  for  the 
relief,  and  are  entitled  to  great  weight  in  determining  an 
application  for  a  preliminary  injunction.  And  it  may  be 
laid  down  as  a  rule  of  frequent  and  uniform  application 
that  where  the  validity  of  the  patent  in  question  has  been 
sustained  by  the  adjudications  of  other  courts  upon  final 
hearing  after  strenuous  and  bona  fide  litigation,  the  only 
question  open  to  the  consideration  of  the  court  upon  an 
application  for  an  interlocutory  injunction  is  that  of  in- 
fringement, all  other  defenses  being  postponed  until  the  final 
hearing,  unless  the  defendant  adduces  new  evidence  of  so 
persuasive  a  character  as  to  lead  to  the  conviction  that, 
had  it  been  presented  in  the  other  litigation,  the  result 
would   in   all  probability  have   been  different.^      The   rule   is 

1  Electric  Mfg.  Co.  r.  Edison  Elec-  White  Dental  Mfg.  Co.  v.  Johnson, 

trie  Co.,  10  C.  C.  A.,  106,  61  Fed.,  56  Fed.,  262;  Allington  Mfg.  Co  v. 

834;  Philadelphia  T.,  S.  &  I.  Co.  v.  Lynch,     71    Fed.,   409;     Bowers    i\ 

Edison  Electric  Light  Co.,  13  C.  C.  Pacific  Coast  D.  &  R.  Co.,  81  Fed., 

A.,  40,  65  Fed.,  551;    Southern  Pa-  569;    New  York  Filter  Mfg.  Co.  v. 

cific  Co.  V.  Earl,   27  C.  C.  A.,  185,  Jackson,  91  Fed.,  422;  Robertson  v. 

82  Fed.,  690;    Putnam  v.  Keystone  Hill,   6  Fish.,  485;    Odorless  Exca- 

B.  S.  Co.,  38  Fed.,  234;   Thompson  vating    Co.    v.    Lauman,    4    Woods, 

V.  Donnell  Mfg.  Co.,  40  Fed.,  383;  129;    Orr  v.  Littlefield,  1  Woodb.  & 

Edison  Electric  L.  Co.  v.  Beacon  V.  M..    13;    Woodworth    v.    Hall,   lb., 

P.  &  E.  Co.,  54  Fed.,  678;    Sawyer  248;     Woodworth   v.     Edwards,     3- 

Spindle  Co.  v.  Turner,  55  Fed.,  979;  Woodb.  &  M.,  120;   Gibson  v.  Vaa 


W6 


INJUNCTIONS. 


[chap.  XVI. 


based  not  only  upon  the  comity  and  respect  which  should  be 
observed  between  courts  of  co-ordinate  jurisdiction,  but  also 
upon  the  very  strong  presumption  w^hich  arises  in  favor  of 
the  validity  of  the  patent  as  the  result  of  the  solemn  judg- 
ment of  the  other  court.  And  where  such  prior  adjudica- 
tion has  been  affirmed  upon  appeal,  it  affords  still  stronger 

Dresar,  1  Blatch.,  532;  Potter  v. 
Holland,  4  Blatch.,  238;  Goodyear 
V.  Central  R.  R.  of  New  Jersey, 
1  Fish.,  626;  Parker  v.  Brant,  lb., 
58;  Potter  v.  Fuller,  2  Fish.,  251; 
Potter  V.  Whitney,  3  Fish.,  77; 
S.  C,  1  Lowell,  87;  Conover  v. 
Mers,  3  Fish.,  386;  Goodyear  v. 
Evans,  lb.,  390;  Goodyear  v.  Berry, 
lb.,  439;  Goodyear  v.  Rust,  lb., 
456;  Thayer  v.  Wales,  9  Blatch., 
170;  S.  C,  5  Fish.,  130.  Thus,  it  is 
said  that  "where  complainant  has 
made  out,  not  merely  a  grant  of 
the  patent,  but  possession  and  use 
and  sale  under  it  for  some  time 
undisturbed,  and  besides  this  a  re- 
covery against  other  persons  using 
it,  the  courts  have  invariably  held 
that  such  a  strong  color  of  title 
shall  not  be  deprived  of  the  benefit 
of  an  injunction,  till  a  full  trial  on 
the  merits  counteracts  or  annuls 
it."  Per  Woodbury,  J.,  in  Orr  v. 
Littlefield,  supra.  And  in  Edison 
Electric  L.  Co.  v.  Beacon  V.  P.  & 
E.  Co.,  supra.  Colt,  J.  says:  "The 
general  rule  is  that  where  the  val- 
idity of  a  patent  has  been  sus- 
tained by  prior  adjudication,  and 
especially  after  a  long,  arduouS; 
and  expensive  litigation,  the  only 
question  open  on  motion  for  a  pre- 
liminary injunction  in  a  subse- 
quent suit  against  another  defen- 
dant is  the  question  of  infringe- 
ment, the  consideration    of    other 


defenses  being  postponed  until 
final  hearing.  The  only  exception 
to  this  general  rule  seems  to  be 
where  the  new  evidence  is  of  such 
a  conclusive  character  that,  if  it 
had  been  introduced  in  the  former 
case,  it  probably  would  have  led 
to  a  different  conclusion.  The 
burden  is  on  the  defendant  to  es- 
tablish this,  and  every  reasonable 
doubt  must  be  resolved  against  it." 
To  the  same  effect,  see  United  In- 
durated Fibre  Co.  v.  Whippany 
Mfg.  Co.,  83  Fed.,  485,  although 
this  case  was-  reversed  upon  other 
grounds  in  30  C.  C.  A.,  615,  87 
Fed.,  215.  As  to  the  effect  of  an 
adjudication  sustaining  the  valid- 
ity of  the  patent  upon  an  interfer- 
ence in  the  patent  office  upon  the 
right  to  restrain  an  infringement, 
see  Pentlarge  v.  Berston,  14 
Blatch.,  352;  Barr  Company  v. 
New  York  &  N.  H.  A.  S.  Co.,  24 
Blatch.,  566.  And  it  is  held  that 
an  adjudication  in  favor  of  the 
patent  in  an  interference  proceed- 
ing will  justify  a  preliminary  in- 
junction as  against  the  defendant 
in  those  preceedings  and  those  iii 
privity  with  him.  Smith  v.  Halk- 
yard,  16  Fed.,  414,  and  cases  cited. 
But  such  an  adjudication  will  not 
avail  as  against  strangers.  Dick- 
erson  v.  Machine  Co.,  35  Fed.,  143; 
Wilson  r.  Consolidated  S.  Co.,  31 
C.  C.  A.,  533,  88  Fed.,  286. 


CHAP.  XVI.]  IXFRIXGEMENT  OF  PATENTS.  897 

ground  for  a  preliminary  injunction.-  And  of  still  greater 
weight  is  the  adjudication  where  it  has  finally  been  sustained 
by  the  Supreme  Court  of  the  United  States.^ 

§  954.  Applications  of  the  doctrine.  In  accordance  with 
the  rule  as  thus  announced,  it  is  held  that  where  the  patent 
has  been  sustained  on  a  full  hearing  against  other  defendants, 
and  the  infringement  is  clear,  and  especially  where  the 
precise  form  of  machine  used  by  defendant  has  been  pre- 
viously passed  upon  by  the  court  on  the  question  of  infringe- 
ment, complainant  is  entitled  to  have  his  rights  promptly 
protected  by  injunction.^  So  where  complainant  relies  upon 
prior  adjudications  in  support  of  his  patent  as  a  ground  for 
relief  against  its  infringement,  although  it  is  competent  for 
defendant  to  show  that  the  title  was  not  fairly  in  controversy 
in  the  former  cases,  or  that  some  material  fact  was  over- 
looked, yet  the  considerations  which  would  justify  the  court 
in  renewing  the  discussion  of  the  patentee's  title,  which 
is  already  res  ad  judicata,  should  be  such  as,  if  presented  to 
the  court  after  a  trial  at  law,  would  have  sufficed  to  set 
aside  a  verdict.^  So  when  plaintiff  shows  long  enjoyment 
xmder  his  patent,  with  repeated  adjudications  at  law  sus- 
taining its  validity,  he  is  entitled  to  an  injunction  against  its 
infringement.^  And  where  the  validity  of  plaintiff's  patent 
has  been  established  by  repeated  adjudications,  and  it  is 
manifest  that  neither  the  public  nor  the  defendants  will 
suffer  any   inconvenience   from   the   issuing   of  the  writ,   the 

^  Bresnahan  v.  Tripp  G.  L.  Co.,  3  American  Purifier  Co.  v.  Chris- 

19  C.  C.  A.,  237,  72  Fed.,  920,  where  tian,  3  Banning  &  A..  42,  51;  Amer- 

the  prior  adjudication  was  of  the  ican  Bell  T.  Co.  r.  Southern  T.  Co., 

same  court;  Beach  v.  Hobbs,  34  C.  34    Fed.,    795;     American  Bell    T. 

C.  A.,  248,  92  Fed.,  146;   Norton  v.  Co.  i\  McKeesport  T.  Co.,  57  Fed.. 

Eagle  Automatic  Can  Co.,  57  Fed.,  661. 

929;     Tannage  Patent  Co.  v.  Don-  ^  Conover  v.  Mers,  3  Fish.,  386. 

nalan,  75  Fed.,  287;   Tannage  Pat-  "'Parker  v.  Brant,  1  Fish..  58. 

ent  Co.   V.  Adams,    77    Fed.,    191 ;  '=  Newall  r.  Wilson,  2  DeG.,  M.  & 

American  S.  P.  Co.   v.  Burgess   S.  G.,  282. 
F.  Co.,  103  Fed.,  975. 
57 


898  INJUNCTIONS.  [chap.  XVI. 

fact  that  it  is  not  alleged  that  defendants  are  insolvent,  or 
that    plaintiffs    would    suffer    irreparable    injury    by    waiting 
until  a  final  hearing,  constitutes  no  bar  to  the  relief  J     And 
a   prior   adjudication    in   favor   of   the   validity   of   a   patent 
affords   sufficient    ground   for   a   preliminary    injunction   not- 
withstanding the  subsequent  reversal  of  such  prior  judgment, 
provided   the    reversal   was   upon    grounds   which   in   no   way 
went  to  the  validity  of  the  patent.^     And  where  the  patent 
has    been    several    times    sustained    by    other    courts,    plain- 
tiff   will    not    be    deprived    of    the    right    to    a    preliminary 
injunction  by  the  filing  by  defendants  of  ex  parte  affidavits 
setting  up  newly  discovered  evidence  where  it  appears  that 
defendants   were    closely   allied   with   the    defendants   in   the 
other  litigation  and  that  such  evidence  was  to  a  certain  ex- 
tent known  to  those  defendants.^     And  the  effect  of  a  prior 
adjudication  in   favor   of  the   validity  of  a  patent  will  not 
be  overcome  upon  a  motion  for  a  preliminary  injunction  by 
new  evidence  where  it  appears  from  the  opinion  of  the  court 
in  the  former  litigation  that  the  result  would  have  been  the 
same  had  such  evidence  been  there  presented.^^     But  where 
there    are   two    conflicting   prior   adjudications,    one    sustain- 
ing and  the  other  denying  the  validity  of  plaintiff's  patent, 
the  court  is  at  liberty  to  examine  the  reasoning  of  the  two 
decisions  and  to  adopt  that  which  impresses  it  as  correct.^* 
Moreover,  it  should  be  borne  in  mind  that   a  prior  adjudi- 
cation in  favor  of  a  patent  is  not  an  indispensable  condition 
to  the  granting  of  a  preliminary  injunction,   and  the  relief 
may    be    granted    without    such    an    adjudication    where    the 
plaintiff  makes  any  other  showing  by  which  the  validity  of 
his    patent    is    clearly    established.^^     And   where    there    has 

7  Goodyear  v.  Central    R.    R.    of  i"  Sawyer  Spindle  Co.  v.  Taylor, 

New  Jersey,  1  Fish.,  626.  56   Fed.,  110. 

«  Keyes  v.  Pueblo  S.  &  R.  Co.,  31  i^  Pelzer  v.  Newhall,  98  Fed.,  684. 

Fed.,  560.     And  see  Wells  v.  Gill,  12  McDowell  /?.  Kurtz,  23  C.  C.  A., 

6  Fish..  89.  119,   77   Fed..   206;    Cary  Mfg.   Co. 

"  Brush  Electric  Co.  r.  Accumu-  v.  Haven,  58  Fed.,  786. 
lator  Co.,  50  Fed.,  833. 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  899 

been  a  prior  adjudication  not  in  favor  of  plaintiff's  patent 
but  to  the  effect  that  the  defendant's  vendor  had  the  legal 
right  to  manufacture  and  sell  the  alleged  infringing  arti- 
cle, a  preliminary  injunction  should  be  denied.^^ 

§  955.     Effect  on  appeal.     Upon  an  appeal  from  a  prelim- 
inary injunction  based  upon  a  prior  adjudication  sustaining 
the  validity  of  a  patent,  the  court  of  appeals  will  ordinarily 
consider   the    case    from   the   same    standpoint   as   that   from 
which  it  was  viewed  in  the  court  below,  and,  in  the  absence  of 
some  controlling  reason  to  the  contrary,  will  accordingly  give 
to    such   adjudication    the    same    force    and   weight    as    were 
accorded   it   in   the    lower   court;    although   upon    an    appeal 
from   a   final    decree,    the    court   would   not   hesitate    to    dis- 
regard the   decision  in  which  the  prior  judgment  was  ren- 
dered.^*    Notwithstanding  the  rule   as  thus   announced,  the 
reviewing  court,  upon  such  an  interlocutory  appeal,  will  not 
feel  as  firmly  bound  by  such  adjudication  as  the  lower  court 
and   it   may   accordingly    re-examine   such   prior   rulings    and 
if  convinced  that  they  are  erroneous  it  may  disregard  them 
and  accord  to  the  patent  the  construction  which  seems  to  it 
to  be  the  proper  one.i®     Nor  is  the  court  of  appeals  of  one 
circuit   bound   to   follow   the   prior    adjudication    of   another 
court  of  appeals,  especially  where   the   actual  questions  are 
not    involved   or   if    convinced    that    such    prior    decision    is 
erroneous.i^ 

13  Edison  Electric  L.  Co.  v.  Citi-  Co.  v.  Littauer,  28  C.  C.  A.,  133,  84 
zens  E.  L.  Co.,  64  Fed.,  491.  Fed.,  164. 

14  American  Paper  P.  &  B.  Co.  t-.  is  National  Cash  Register  Co.  v. 
National  F.  B.  &  P.  Co.,  2  C.  C.  A.,  American  Cash  Register  Co.,  3  C. 
165,  51  Fed.,  229,  1  U.  S.  App.,  C.  A.,  559,  53  Fed.,  367;  Thomson- 
283;  Duplex  Printing-Press  Co.  v.  Houston  Electric  Co.  v.  Hoosick  Ry. 
Campbell  Prlnting-Press  &  Mfg.  Co.,  27  C.  C.  A.,  419,  82  Fed.,  461. 
Co.,  16  C.  C.  A.,  220,  69  Fed.,  250;  le  Mast,  Foos  &  Co.  v.  Stover 
Thomson-Houston  Electric  Co.  r.  Mfg.  Co.,  177  U.  S.,  485,  20  Sup. 
Ohio  Brass  Co.,  26  C.  C.  A.,  107,  80  Ct.  Rep;,  708. 

Fed.,  712;    Consolidated    Fastener 


900  INJUNCTIONS.  [chap.  XVI. 

§  956.  Extension  and  re-issue.  The  fact  that  the  patent  is 
extended  after  the  adjudications  sustaining  its  validity  does 
not  affect  the  application  of  the  doctrine  under  consideration. 
Thus,  where  a  patent  has  been  sustained  during  its  original 
term  by  four  different  adjudications,  one  of  them  being 
against  the  same  defendant  for  the  use  of  the  same  process 
involved  in  the  application  for  the  injunction,  after  the  ex- 
tension of  the  patent  the  novelty  of  the  invention  and  the 
validity  of  the  patent  are  regarded  as  sufficiently  established 
by  the  prior  adjudications.^"  But  the  existence  of  a  sub- 
stantial doubt  as  to  the  identity  of  the  invention  covered  by 
the  re-issue  with  that  contained  m  the  original  is  sufficient 
ground  for  denying  the  motion  to  restrain  the  infringement 
of  the  re-issue.^  ^ 

§957.  Trial  at  law;  award.  If  the  result  of  a  trial  at 
law  to  determine  the  right  is  "satisfactory  to  a  court  of 
equity,  it  may  at  once  interfere  for  the  protection  of  the 
patent,  even  though  the  defendant  is  about  to  take  further 
steps  at  law.^^  And  the  eft'ect  of  a  verdict  and  judgment 
sustaining  the  patent  in  an  action  at  law  upon  a  bill  in 
equity  to  restrain  an  infringement  is  to  make  out  a  prima 
facie  case  of  title  in  the  plaintiff'  and  of  infringement  by 
defendants. 2*^  And  an  award  sustaining  the  validity  of  the 
patent,  on  a  reference  being  had  in  a  trial  at  law,  is  entitled 
to  the  same  consideration  as  a  verdict.-^ 

§  958.  Limitations  upon  the  doctrine.  Notwithstanding 
the  great  weight  which,  as  Ave  have  already  seen,  the  courts 
attach    to    prior    adjudications    sustaining   the    validity    of   a 

1"  Tilghman  r.  Mitchell,  4  Fish.,  i«  Poppenhusen      ?;.      Falke,      4 

615;   S.  C,  9  Blatch...  18.     And  see  Blatch.,  493. 

Clum  /-.  Brewer,  2  Curt.  C.  C,  .506,  i-' Boulton    r.   Bull,   3   Ves.,   140; 

where  the  same  doctrine  is  main-  Bridson   r.    Benecke,   12   Beav..   7. 

taincd,  although  the  relief  was  re-  -'>  Wells  r.  Gill,  G  Fish.,  89. 

fused   on   other   grounds.  21  Lister  v.   Eastwood,   26   L.  T., 

4. 


CHAP.  XVI.]  IXFIUXGE.MENT  OF  PATENTS.  901 

patent,  the  recovery  of  a  verdict  for  plaintiff,  in  an  action 
at  lav^  upon  a  patent,  is  not  necessarily  conclusive  upon  his 
right  to  an  injunction,  and  the  court  may,  upon  such  appli- 
cation, consider  the  true  interpretation  of  the  patent,  irre- 
spective of  the  former  verdict,--  especially  where  a  writ  of 
error  is  pending  to  the  proceedings  at  law.-'*  And  an  ex- 
ception to  the  rule  has  been  recognized  in  cases  where  new 
evidence  has  been  adduced  by  the  defendant  in  opposition 
to  the  patent  Avhich  is  of  such  a  clear  and  conclusive  char- 
acter as  to  lead  to  the  conviction  that,  had  it  been  pre- 
sented in  the  prior  proceeding,  the  result  would,  in  all  proba- 
bility, have  been  different ;  and  in  such  case,  a  preliminary 
injunction  may  be  denied,  notwithstanding  the  prior  adju- 
dication.-^ So  Avhere  a  preliminary  injunction  has  already 
been  granted  upon  the  strength  of  such  prior  judgment,  it 
may,  upon  the  presentation  of  such  evidence,  be  dissolved.-^ 
And  although  the  defense  now  relied  upon  was  raised  in  the 
former  proceeding,  yet  if  it  is  now  supported  by  evidence  of 
such  a  conclusive  nature  as  to  lead  to  a  different  conclusion, 
interlocutory  relief  may  properly  be  refused,-"  Moreover 
the  rule  requires  that  a  prior  adjudication,  in  order  to 
afford  sufficient  ground  for  a  preliminary  injunction,  should 
have  been  rendered  in  a  proceeding  where  there  "vvas  an 
actual,  bona  fide  controversy  between  the  parties  in  which 
a  contest  has  been  made  against  the  validity  of  the  patent. 
Where,  therefore,  the  adjudication  has  been  rendered  in  a 
cause  which  has  been  submitted  on  final  hearing  without 
brief  or  argument  upon  behalf  of  the  defendant,  it  wuU  not 
afford  ground  for  a  preliminary  injunction  where  there  is  no 

2-  Many  v.  Sier,  1  Fish.,  31.  ers  v.  San    Francisco    Bridge    Co., 

23  Day  V.  Hartshorn,  3  Fish.,  32.  69  Fed.,  640;  Western  Electric  Co. 

24  Bailey  W.  M.  Co.  v.  Adams.  3  r.  Keystone  Tel.  Co..  115  Fed..  809. 
Banning  &  A.,  96;  Ladd  v.  Camer-  -' Cary  v.  Domestic  S.-B.  Co.,  26 
on,  25   Fed.,  37;    Glaenzer  r.  Wie-  Fed.,  38. 

derer,  33  Fed..  583 ;  Norton  D.  C.  -'g  Lockwood  r.  Faber,  27  Fed., 
&  S.  Co.  i\  Hall,  37  Fed..  691 ;  Bow-     63. 


902  INJUNCTIONS.  [chap.  XVI. 

proof  of  public  acquiescence  and  the  validity  of  the  patent 
is  vigorously  denied.^^  So  also  a  final  decree  entered  by 
consent  upon  a  settlement  of  the  litigation,  will  not  fulfill 
the  requirements  of  the  rule  and  constitutes  no  ground  for 
a  preliminary  injunction.^s  Nor  will  a  former  judgment 
suffice  as  a  basis  for  interlocutory  relief  where  it  was  ren- 
dered in  a  suit  which,  at  the  time  of  its  rendition,  had 
ceased  to  be  an  adversary  proceeding,  which  fact  was  not 
known  to  the  court  at  the  time  of  its  decree.^^  And  not- 
withstanding a  prior  adjudication  in  favor  of  a  patent,  the 
court  may  refuse  a  preliminary  injunction  where  it  is  shown 
that  the  right  claimed  by  the  plaintiff  was  not  fairly  in  con- 
troversy in  the  former  action  or  that  certain  material  facts 
were  not  known  or  considered  in  that  proceeding.^*'  So  the 
adjudication  will  not  avail  where  it  appears  that  the  con- 
struction given  to  plaintiff's  patent  in  the  former  suit  was 
not  broad  enough  to  cover  defendant's  process  and  there- 
fore to  subject  them  to  the  charge  of  infringement.^'  Nor 
need  the  court  follow  such  an  adjudication  as  a  matter  of 
comity  where  it  has  already  reached  a  different  conclu- 
sion  in   ignorance   of  it.^-     And   where   the   prior   judgment 

-7  American       Electric     Novelty  the  court  would  seem  to  refer  to 

Co.  V.  Newgold,  99  Fed.,  567.  And  the    action    upon    these    interlocu- 

see  American  M.  P.  Co.  v.  Vail,  15  tory  applications  as  the  prior  ad- 

Blatch.,  315.     But  see  Orr  v.  Little-  judication    in   question.        But   the 

field,  1  Woodb.  &  M.,  13.  decision   was    doubtless     intended 

-«  De  Ver  Warner  v.  Bassett,  7  to  apply  also  to  the  action  in  en- 
Fed.,  468.  In  this  case  it  appeared  tering  the  final  decree, 
that  in  the  action  relied  upon  as  '■^^  Western  Electric  Co.  i\  An- 
a  prior  adjudication,  a  motion  for  thracite  Tel.  Co.,  100  Fed.,  301;  S. 
a  preliminary  injunction  had  been  C,  on  final  hearing,  113  Fed.,  834. 
argued  and  granted.  Afterward  3o  Page  v.  Holmes  B.  A.  T.  Co.,  2 
defendant     procured    a    re-hearing  Fed.,  330. 

of  this  motion  and  the  court,  after  si  Whippany  Mfg.  Co.  v.   United 

re-examining  the  question,  contin-  I.  F.  Co.,  30  C.  C.  A.,  615,  87  Fed., 

ued  the  injunction.     Subsequently  215. 

a   settlement    was    had    and    the  32  Consolidated     R.-M.      Co.      i\ 

court   entered    a    final     decree     by  Smith  M.  P.  Co.,  40  Fed.,  305. 
consent.     From  the  language  used, 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  903 

upon  which  a  preliminary  injunction  has  been  based  is  sub- 
sequently reversed  upon  appeal,  the  injunction  should  be 
dissolved;  and  this  is  so,  although  the  reversal  was  because 
of  an  accord  and  satisfaction.^^  And  where  complainant 
relies  upon  a  previous  verdict  of  a  jury  and  judgment  of  a 
court  of  law,  for  the  establishing  of  his  patent  upon  an 
application  for  an  injunction,  he  must  aver  in  his  bill  that 
such  proceedings  have  taken  place.^^  If  the  verdicts  upon 
which  complainant  relies  have  been  rendered  upon  claims 
so  inconsistent  and  contradictory  that  the  court  can  not  say 
with  certainty  what  is  and  what  is  not  an  infringement  of 
the  patent,  the  injunction  will  be  refused.^^  And  the  fact 
that  another  court  has,  upon  an  interlocutory  application, 
granted  an  injunction  against  other  parties  restraining  the 
infringement  of  the  patent  is  not,  of  itself,  a  sufficient  ad- 
judication of  plaintiff's  right  to  justify  an  injunction  when 
the  infringement  is  positively  denied  by  answer  and  affida- 
vits.^^ And  where  it  is  sought  to  avoid  a  preliminary 
injunction  upon  the  ground  of  newly  discovered  evidence, 
although  such  evidence  may  not  be  of  such  a  conclusive, 
positive  and  satisfactory  character  as  to  warrant  the  belief 
that,  had  it  been  presented  in  the  former  action,  the  result 
would  have  been  different,  it  may  nevertheless  be  sufficient 
to  justify  the  court  in  dissolving  a  temporary  injunction  pre- 
viously granted,  upon  the  filing  of  a  bond  by  the  defendant.^^ 
And  it  is  to  be  observed  that  no  considerations  of  comity 
reqiiire  a  court  to  shut  its  eyes  and  blindly  follow  the  prior 
adjudications  of  other  courts,  where  it  is  convinced  upon 
independent  investigation  that  such  decisions  are  clearly 
erroneous;  and  the  action  of  the  court  in  refusing  thus  to  be 

33  Prieth   v.   Campbell   P.    &    M         36  Sargent  Manufacturing  Co.  v. 
Co.,  25  C.  C.  A.,  624,  80  Fed.,  539.     Woodruff,  5  Biss.,  444. 

And  see,  ante.  §  954.  37  Norton     v.     Eagle    Automatic 

34  Parker  v.  Brant,  1  Fish.,  58  Can  Co.,  61  Fed.,  293. 

35  Parker  v.  Sears,  1  Fish.,  93. 


904 


IXJUNCTIONS. 


[chap.  XVI. 


bound  is  held  to  be  the  exercise  of  a  proper  discretion  which 
will  not  be   disturbed  upon  appeal.-"^** 

§  959.  Effect  of  re-issue  covering-  wider  ground.  Where 
the  validity  of  a  patent  has  been  sustained  by  a  decision  at 
laAv  during-  its  original  term,  and  thereafter  a  re-issue  is 
obtained  covering  a  wider  ground  than  that  adjudicated 
in  the  original,  all  that  lies  between  the  limits  of  the  orig- 
inal and  of  the  re-issue  is  disputed  territory.  And  if  in 
such  ease  the  infringement  which  it  is  sought  to  enjoin  lies 
wholly  within  that  disputed  territory,  the  application  for 
relief  Avill   be   denied.^^ 


38  Welsbach  Co.  r.  Cosmopolitan 
I.  L.  Co.,  43  C.  C.  A..  418,  104 
Fed.,  83.  It  is  admittedly  a  mat- 
ter of  considerable  difficulty  to 
reconcile  this  case  satisfactorily 
■with  the  otherwise  unanimous  de- 
cisions of  the  courts  in  which  the 
effect  of  prior  adjudications  is  so 
clearly  and  definitely  established. 
And  the    wisdom    of    attempting, 


upon  an  interlocutory  application, 
to  pass  judgment  upon  the  valid- 
ity of  a  patent  contrary  to  the  sol- 
emn and  deliberate  adjudication  of 
another  court  rendered  after  a 
strenuous  contest  and  upon  final 
hearing  may  well  be  questioned. 

■'»  Poppenhusen  v.  Falke,  2  Fish., 
181. 


CHAP.  XVI.]  IXFRIXGEMEXT  OF  PATENTS.  905 

III.   Principles  upon   which   Remef  is  Granted. 

§  960.  Defendant's  bona  fides ;    patent  to  defendant. 

961.  Injunction  not  granted  on  patent  alone. 

962.  Considerations  of  hardship  and  convenience. 

963.  Prima  facie  infringement  must  be  shown;    recent  patent. 

'     964.     Clear   infringement    required    when    patent    not    adjudicated; 
good  faith  of  defendants. 

965.  Acquiescence  and  encouragement  bj^  plaintiff  a  bar  to  relief. 

966.  Limitations  upon  the  doctrine. 

907.  Defendant's  pecuniary  responsibility:  questions  of  damage; 
license  fee  as  measure  of  damage;  damages  for  past  infringe- 
ment will  not  justify  future  infringement. 

968.  Bond  or  security  in  lieu  of  injunction. 

969.  Plaintiff's  prior  possession  and  use  considered;  partial  infringe- 

ment;   denial  by  answer. 

970.  Dissolution. 

971.  Rights  of  licensee. 

972.  The  same. 

973.  Actual   infringement  not   necessary;     apprehensions   of   future 

infringement;     experiments. 

974.  Public  convenience;    injury  to  third  persons. 

975.  Validity;    novelty;    infringement. 

976.  Infringement  after  verdict;    promise  by  defendant  not  to  con- 

tinue infringement. 

977.  Subsequent  patent  to  defendant;    doubt  as  to  novelty. 

978.  Proof  as  to  inventor;    dissolution. 

979.  Parties;   action   against  United   States. 

980.  Questions  of  jurisdiction. 

981.  Expiration  of  patent;    assignee  of  defendant  pendente  lite. 
981a.  The  same;   effect  on  appeal;    when  injunction  allowed   though 

patent  has  expired. 
981&.  Effect  of   expiration   on   right   to  accounting. 

982.  Grounds  of  dissolution;    account;     appeal. 

983.  Penalty  for  not  marking  patented  articles;    injunction  upon  the 

hearing. 

984.  Process  not  patented  may  be  protected. 

985.  When  jurisdiction  exercised  over  foreigners. 

986.  Violation;     infringement  not  determined   in  contempt   proceed- 

ing;    judgment  imposing  fine,  being  criminal,   is  reviewable 
by  writ  of  error. 

987.  Account  not  incidental  to  injunction. 

§960.     Defendant's     bona     fides;     patent     to     defendant. 
Where     defendant    is    aetinp'    in     t;ood    faith    under    letters 


906  INJUNCTIONS.  [chap,  XVI. 

patent  covering  his  process  of  manufacture,  he  has  a 
prima  facie  right  to  continue,  and  the  court  will  not, 
upon  ex  parte  affidavits,  on  an  application  for  a  preliminary 
injunction,  decide  the  whole  merits  of  a  bona  fide  issue,  and 
thus  anticipate  a  final  judgment  upon  the  legal  questions 
involved.  And  if  in  such  case  defendant  shows  a  belief 
that  he  has  a  just  defense,  and  has  not  wilfully  pirated 
complainant's  invention,  the  court  will  require  a  case  of 
evident  mistake  of  law,  or  of  fact,  or  both,  in  the  defense 
thus  interposed,  before  it  will  resort  to  the  remedy  by  in- 
junction.i  But  the  fact  that  defendant,  after  the  alleged 
infringement,  has  received  a  patent  for  the  article  manu- 
factured by  him,  will  not  prevent  an  injunction  if  the  in- 
fringement is  satisfactorily  established,  since  the  granting 
of  a  subsequent  patent  merely  serves  to  indicate  the  opin- 
ion of  the  officers  granting  it,  upon  an  ex  parte  examination 
of  the  subject,  and  is  by  no  means  conclusive. 2  Especially 
if  complainant  has  already  established  his  title  at  law,  and 
obtained  an  injunction  in  the  same  court,  the  relief  will  be 
allowed,  although  defendant  claims  to  have  patented  his 
apparatus  in  good  faith.^  And  where  complainant  makes 
out  a  strong  prima  facie  case  for  an  injunction,  it  will  not 
be  refused  because  defendant  alleges  that  he  is  the  first  and 
original  inventor,  his  evidence  resting  upon  an  ex  parte 
application  to  the  patent  office  and  upon  his  own  affidavit, 
he  having  slept  upon  his  rights  for  a  long  period  of  years.'* 
§  961.  Injunction  not  granted  on  patent  alone.  Equity 
will  never  interfere  upon  the  mere  patent  alone,  without 
proof  of  user  or  sales,  or  of  recoveries  at  law,'^  and  where 
complainant     has     failed     in     previous     trials     at     law     to 

1  Goodyear  v.  Dunbar,    1    Fish.,  *  Potter  v.  Stevens,  2  Fish.,  163. 
472.  ^'  Hovey  i\  Stevens,  1  Woodb.  & 

2  Morse  Pen  Co.  v.  Esterbrook,  3  M.,  290;  Toppan  v.  National  Co.,  4 
Fish.,  515.  Blatch..  509;  S.  C,  2  Fish.,  196. 

3  Sickels  V.   Tileston,    4    Blatch.. 
109. 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  907 

establish  his  rights,  and  it  does  not  appear  that  they 
have  been  acquiesced  in  by  the  public,  the  relief  will  be 
withheld.*'  And  where  complainant's  patent  has  but  a 
short  time  yet  to  run,  and  there  can  be  but  little  difficulty 
in  determining  what  would  be  a  proper  indemnity  for  the 
use  of  his  invention  in  the  manufacture  of  defendant's 
machines,  defendant's  apparatus  embracing  improvements 
which  can  not  be  used  without  the  original  invention  of 
complainant,  upon  which  they  are  engrafted,  the  defendant 
may  be  permitted,  in  lieu  of  a  temporary  injunction,  to 
give  bond  with  approved  security  to  account  and  pay  such 
sum  as  the  court  may  finally  decree.'^ 

§  962.  Considerations  of  hardship  and  convenience.  While 
considerations  of  the  relative  hardship  and  inconvenience 
to  the  respective  parties,  by  granting  or  withholding  the 
relief,  may  properly  be  taken  into  account  in  determining 
the  application,  yet  where  the  right  is  well  established  and 
the  violation  clear,  neither  considerations  of  public  or 
private  convenience,  or  of  hardship  to  the  defendant, 
will  prevent  the  court  from  interfering.^  More  especially 
where  complainant's  right  has  been  established  by  pre- 
vious adjudication  will  the  court  refuse  to  be  governed 
by  considerations  of  hardship  to  defendant  from  grant- 
ing the  injunction,  since  it  is  manifestly  unjust  that  a 
patentee,  whose  rights  have  already  been  established,  should 
be  under  the  necessity  of  meeting  litigation  in  a  great  vari- 
ety of  cases,  thereby  rendering  his  patent  comparatively 
valueless.^  And  when  there  has  been  long  and  quiet  en- 
joyment   under    the    patent,    and    its    validity    has    been    sus- 

6  Serrell  I'.  Collins,  4  Blatch.,  61;  »  Sickels   v.  Tileston,    4   Blatch., 

Toppan  V.  National    Co.,    lb.,    509.  109;  Potter  r.  Fuller,  2  Fish.,  251; 

And  see  North  r.  Kershaw,  lb.,  70;  Ely  v.  Monson  &  B.  M.  Co.,  4  Fish., 

Muscan  H.  M.  Co.  r.  American  H.  64. 

M.  Co.,  lb.,  174.  ■'  Ely  v.  Monson  &  B.  M.  Co.,  4 

^  Howe  i'.  Morton,  1  Fish.,  586.  Fish.,  64. 


908  INJUNCTIONS.  [chap.  XVI. 

tained  by  the  courts,  an  injunction  will  not  be  withheld 
upon  the  doctrine  of  comparative  inconvenience.^^  And 
where  the  plaintiff's  right  and  the  infringement  by  the 
defendant  are  clear,  it  is  no  defense  to  the  ultimate  grant- 
ing of  the  relief  that  the  writ  may  result  in  great  injury  or 
inconvenience  to  the  public  at  large,  although  the  court  may, 
in  such  case,  suspend  the  operation  of  the  injunction  for 
a  reasonable  time  if  by  so  doing  such  inconvenience  or  injury 
may  thereby  be  lessened  or  avoided.^  ^ 

§  963.  Prima  facie  infringement  must  be  shown ;  recent 
patent.  While  it  is  essential  that  the  patentee  should  pro- 
duce prima  facie  evidence  of  his  title,  yet  this  alone  will 
not  suffice  to  entitle  him  to  the  injunction,  since,  however 
clearly  the  validity  of  the  patent  may  be  established,  a 
prima  facie  case  of  infringement  must  be  made  out  before 
equity  will  interpose.^  ^  g^t  if  the  case  be  free  from  doubt 
in  other  respects,  the  relief  will  not  be  refused  because  the 
patent  is  a   recent  one.^^ 

§  964.  Clear  infringement  required  when  patent  not  adju- 
dicated; good  faith  of  defendants.  When  it  is  sought  to  re- 
strain an  alleged  infringement  of  a  patent  whose  validity 
has  never  been  sustained  by  any  prior  adjudication,  acquies- 
cence in  its  use  being  relied  upon  as  the  foundation  for  relief, 
the  infringement  must  be  palpable  and  clear.  And  while  the 
fact  that  defendants  are  using  a  machine  which  is  openly 
made,  sold  and  used  under  patents,  and  which  the  manufac- 
turers have  put  upon  the  market  in  good  faith  and  in  open 
competition  with  the  machines  made  by  plaintiff  and  in  the 
belief  that  they  were  not  trespassing  upon  his  rights,  will 
not  of  itself  constitute  a  sufficient  defense  if  defendants  are 

I'l  Davenport  v.  Jepson,  4  De-  son-Houston  Electric  Co.  v.  Union 
Gex,  F.  &  .1.,  440.  '  Ry.  Co.,  78  F'ed..  365. 

"Campbell  P.  &  M.  Co.  c.  Man-  i-' Hill  /•.  Thompson,  3  Meriv., 
hattan  Ry.  Co.,  49  Fed.,  930;  Thorn-     626. 

"Clark  r.  Ferguson.  1  Gif.,  184. 


CHAP.  XVI.  I  IXFRINGEMENT  OF  P.VTENTS.  909 

adjudged  guilty  of  an  infringement  upon  the  final  hearing, 
it  constitutes  a  reason  why  the  court  should  hesitate  to  in- 
terfere before  final  decree,  when  there  is  no  suggestion  of 
irremediable  injury  in  the  meantime,  or  of  any  want  of 
•ability  to  respond  in  the  event  of  a  final  recovery.'^ 

§  965.  Acquiescence  and  encouragement  by  plaintiff  a  bar 
to  relief.  In  considering  applications  for  relief  by  injunc- 
tion against  the  infringement  of  patents,  courts  of  equity 
require  of  the  patentee  due  and  reasonable  diligence  in  the 
assertion  of  his  rights,  and  a  long  or  unreasonable  delay  in 
invoking  relief*  or  acquiescence  for  a  considerable  length  of 
time  in  the  infringement  complained  of,  may  afford  suffi- 
cient ground  for  refusing  an  injunction.^  ■'•  Thus,  where  the 
patentee  has  stood  by  for  many  years  and  acquiesced  in  the 
use  of  the  article  which  he  afterward  seeks  to  enjoin,  such 
acquiescence,  without  objection  and  without  demand  of 
compensation,  is  regarded  as  conclusive  evidence  that  the 
continuance  of  the  use  of  his  invention,  for  the  short  period 
yet  remaining  before  the  expiration  of  his  patent,  will  not 
constitute  such  an  irreparable  injury  as  to  warrant  an  in 
junction.i^'  And  where  the  patentee,  while  licensing  certain 
persons  to  use  his  invention,  has  permitted  others  to  use  it 
■without  license  and  without  objection,  such  conduct  may  be 
taken  into  consideration  by  the  court,  and  although  it  is 
satisfied  of  the  validity  of  the  patent  it  will  not  interfere 
by  an  absolute  and  unconditional  injunction,  but  will  grant 
a  temporary  writ,  with  leave  to  defendant  to  come  in  and 

14  Burleigh   Rock     Drill    Co.    v.  Goodyear   v.   Honsinger,    3    Fish., 

Lobdell,   1   Holmes,  450.  147;    S.   C,    2   Biss.,   1;    Baxter    r. 

1'' Lane  &   Bodley   Co.    v.   Locke,  Combe,  1   Ir.  Ch.,  284;     Blanchard 

150   U.    S.,    193,    14    Sup.   Ct.   Rep.,  v.  Sprague,  1  Cliff.,  288;    Hockhol- 

78;    Keyes  v.   Eureka   Mining  Co.,  zer  r.  Eager,  2  Sawy.,  361;   Covert 

158   U.    S.,   150,    15    Sup.    Ct.   Rep.,  v.  Travers  Bros.  Co.,  96  Fed.,  568; 

772;   Woodmanse  &  H.  Mfg.  Co.  r.  Meyrowitz   Mfg.   Co.    v.    Eccleston. 

Williams,  15  C.  C.  A.,  520,  68  Fed..  98  Fed.,  437. 
489;    Parker  v.  feears,  1   Fish.,  b3;  i«  Parker  r.   Sears,  1   Fish.,  93. 


910  INJUNCTIONS.  [chap.  XVI. 

have  the  same  dissolved  upon  giving  security  to  complain- 
ant.^" So  it  is  held  that  acquiescence  by  a  patentee  for 
a  considerable  length  of  time  in  the  use  of  his  patented 
machine  by  defendant,  who  had  previously  constructed  and 
used  the  same  by  permission  of  the  patentee,  will  justify 
the  court  in  refusing  to  interfere.^  ^  And  where  plaintiffs 
had  permitted  defendants  to  use  the  patented  machine  for 
a  period  of  more  than  eighteen  months,  with  full  knowl- 
edge by  plaintiffs  of  such  user,  such  delay  was  held  to  con- 
stitute sufficient  ground  for  refusing  an  injunction.^ ^  So  if 
complainant  has  encouraged  or  acquiesced  in  the  infringe- 
ment, or  has  permitted  the  erection  of  works  and  large  ex- 
penditures of  money  in  the  manufacture  of  the  patented 
invention,  he  will  not  be  protected.^*^  And  where  defendant 
has  manufactured  under  authority  of  a  patent  and  with 
full  knowledge  of  complainants  for  a  considerable  length 
of  time,  without  molestation,  and  has  invested  money  in 
the  business,  to  warrant  an  injunction  the  case  must  be  free 
from  all  reasonable  doubt.-^  And  especially  will  plaintiff's 
laches  be  a  bar  to  relief  upon  an  application  for  a  pre- 
liminary injunction.22  Nor  will  a  preliminary  injunction  be 
allowed  where  plaintiff"  has  suffered  a  period  of  several 
months  to  elapse  between  the  filing  of  the  bill  and  the 
application  for  the  injunction,  during  which  time  the  de- 
fendant has  laid  in  a  large  supply  of  the  alleged  infringing 
article  for  the  year's  business  which  is  of  short  duration.^s 

17  Goodyear      v.     Honsinger,     3     Sykes  v.  Manhattan,  6  Blatch.,  490. 
Fish.,  147 ;   S.  C,  2  Biss.,  1.  21  North  v.  Kershaw,    4    Blatch., 

18  Blanchard  v.  Sprague,  1  Cliff.,     70. 

288.  22Keyes  v.  Pueblo  S.  &  R.  Co., 

19  Hockholzer  v.  Eager,  2  Sawy.,  31  Fed.,  560;    Waite  v.  Chichester 
361.  Chair   Co.,   45   Fed.,   258;    Price  v. 

20  Bacon  v.  Jones,  4  Myl.  &  Cr.,  Joliet    Steel     Co.,     46    Fed.,     107; 
436;  Bridson  v.  Benecke,  12  Beav.,  Blakey  r.  Kurtz,  78  Fed.,  368. 

7;  Bovill  V.  Crate,  L.  R.  1  Eq.,  388;  ^'f  Ney  Mfg.  Co.  v.  Superior 
North  V.  Kershaw,  4  Blatch.,  70;     Drill  Co.,  56  Fed.,  152. 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  911 

§  966,  Limitations  upon  the  doctrine.  Notwithstanding 
the  well  settled  doctrine  denying  relief  by  injunction  when 
the  patentee  has  long  delayed  the  assertion  of  his  rights, 
the  fact  that  plaintiffs  have  been  compelled  to  litigate  their 
rights  under  their  patent  by  a  long  series  of  suits,  and  have 
but  recently  obtained  an  adjudication  in  their  favor,  has  been 
held  a  sufficient  excuse  for  their  apparent  laches  in  seek- 
ing preventive  relief  in  equity.-^  And  a  delay  of  three 
months  in  filing  the  bill  after  plaintiff  is  apprised  of  the  char- 
acter of  defendant's  infringement  affords  no  ground  for  re- 
fusing an  interlocutory  injunction,  when  defendant  has  not 
thereby  been  induced  to  change  his  position,  and  when  he 
has  had  no  communication  with  plaintiff  in  the  interval.^^ 
And  it  is  held  that  laches  in  the  sense  of  mere  delay  in 
bringing  suit  will  not  deprive  a  patentee  of  the  right  to  a 
perpetual  injunction  against  infringement  in  the  absence  of 
such  words,  acts  or  conduct  as  are  sufficient  to  create  an 
estoppel.26  Where  there  has  not  been  a  long  or  unin- 
terrupted possession  under  the  patent,  and  there  has  been 
a  delay  of  two  years  upon  plaintiff's  part  in  seeking 
to  restrain  the  alleged  infringement,  it  is  proper  to  refuse 
the  injimction  in  limine,  but  without  prejudice  and  with 
liberty  to  plaintiff  to  bring  his  action  at  law.-'^  But  when, 
in  such  case,  plaintiff'  proceeds  with  his  action  at  law  and 
obtains  a  verdict  therein,  it  is  then  proper  to  grant  an  in- 
junction, even  though  a  bill  of  exceptions  has  been  tendered 
in  the  action  at  law  which  has  not  yet  been  finally  disposed 
of  on  error  to  a  court  of  review. ^^ 

§967.  Defendant's  pecuniary  responsibility;  questions  of 
damage;  license  fee  as  measure  of  damage;  damages  for  past 

24  Rumford  Works  v.  Vice,  14  27  Baxter  v.  Combe,  1  Ir.  Ch., 
Blatch.,  179.  284. 

25  Union  Co.  v.  Binney,  5  Fish.,  28  Baxter  v.  Combe,  3  Ir.  Ch., 
166.  256,  affirming  S.  C,  lb.,  245. 

26  Sawyer  Spindle  Co.  v.  Taylor, 
69  F'ed.,  837.    And  see,  ante,  §  10  a. 


912  INJUNCTION'S.  [chap.  XVI. 

infringement  will  not  justify  future  infringement.  Defend- 
ant's pecuniary  responsibility  is  a  material  circumstance  to 
be  taken  into  account  on  the  application  for  an  injunction, 
as  is  also  the  fact  that  he  does  not  make  or  vend  the  pat- 
ented machine,  but  merely  uses  it,  the  only  injury  resulting 
therefrom  to  the  patentee  being  the  loss  of  his  royalty,  and 
not  a  damaging  and  constantly  increasing  competition.-'-* 
Where,  therefore,  the  plaintiff  is  not  the  manufacturer  or 
vendor  of  the  infringing  article,  but  merely  licenses  his 
patent  for  a  fixed  license  fee,  so  that  the  damages  are 
readily  and  satisfactorily  ascertained,  and  it  further  appears 
that  the  defendant  is  abundantly  able  to  respond  in  dam- 
ages, relief  by  injunction  will  be  refused  and  the  plaintiff 
will  be  left  to  the  pursuit  of  his  legal  remedy .^^  So  where 
the  injury  to  the  patentee  resulting  from  the  infringement 
consists,  not  in  the  use  of  the  invention,  but  in  depriving 
him  of  compensation  for  such  use,  the  price  or  value  of  a 
license  constituting  the  rule  of  damages,  an  injunction  is 
not  the  proper  remedy  to  enforce  payment  of  the  money, 
since  the  measure  of  damages  being  a  certain  and  fixed  sum, 
ample  redress  may  be  had  at  law.^^  But  where  the  validity 
of  a  patent  and  the  infringement  thereof  are  clear,  the  pay- 
ment of  damages  for  past  infringement  will  not  confer  upon 
defendant  the  right  to  infringe  in  the  future  and  will  ac- 
cordingly be  no  defense  to  the  granting  of  the  writ  against 
future  infringement.-'- 

§  968.  Bond  or  security  in  lieu  of  injunction.  Although 
defendant's  machine  may  be  an  infringement  of  that  of 
complainant,   yet   if   it   contain   other   and   valuable   improve- 

'■<  Morris  v.  Lowell,  3  Fish.,  37.  ^'i  Sanders  v.  Logan,  2  Fish.,  167. 

■•'"'Smith  V.  Sands,  24  Fed.,  470;  And  see  Livingston    i\   Jones,   Ih., 

National    H.-P.   M.   Co.    r.   Hedden.  207. 

29    Fed.,    147;     Kane     r.     Huggins  ;••■;  Campbell  P.  &  M.  Co.  r.  Man- 
Cracker   Co.,    44    Fed..    287;    Over-  hattan  Ry.  Co..  49  Fed.,  930. 
weight  C.  E.  Co.  v.  Cahill  E.  Co., 
86   Fed.,  338. 


CHAP.  XVI.]  IN  FKINUEMEXT  OF   PATENTS.  913 

meuts  not  covered  by  complainant's  patent,  and  if 
the  issuing  of  the  writ  would  be  likely  to  prejudice  the 
actual  rights  of  defendant,  without  being  as  beneficial 
to  complainant  as  an  account  of  profits  with  security 
for  their  payment,  the  injunction  will  be  withheld  on  con- 
dition of  defendant's  accounting  and  giving  security  for 
payment.^^  And  the  practice  is  sometimes  adopted  of  grant- 
ing the  injunction  in  the  alternative,  unless  defendant  will 
give  bond  in  a  sum  fixed  by  the  court  to  respond  in  such 
damages,  if  any,  as  may  be  awarded  upon  the  final  decree.^* 
So  where  plaintiff  is  not  a  manufacturer  of  the  patented 
article  and  will  be  adequately  protected  by  a  just  compen- 
sation for  the  use  of  his  invention,  and  defendants  are 
heavy  manufacturers  with  a  large  capital  invested  in  their 
business,  the  sudden  stoppage  of  which  would  be  disastrous 
to  them  and  would  be  of  no  benefit  to  plaintiff,  it  is  proper 
to  allow  defendants  the  opportunity  of  giving  a  bond  to 
secure  plaintiffs,  in  lieu  of  granting  an  injunction.^'"'  And 
where  the  validity  of  complainant's  patent  is  denied  on  the 
ground  of  a  prior  public  use,  the  patent  itself  never  having 
been  adjudicated,  and  the  general  allegation  in  the  bill  of 
acquiescence  on  the  part  of  the  public  is  unsupported  by 
proof  and  denied  by  the  answer,  defendant  will  not  be  en- 
joined from  constructing  a  single  machine  merely  for  his 
own  use,  if  he  gives  security  to  complainant  for  all  loss  and 
damage  which  may  result  to  him  by  reason  of  the  construc- 
tion and  use  of  the  machine.^^     But  where  the  infringement 

;^3  Stainthorp  r.  Humiston,  2  Fish.,  302;  S.  C,  1  Holmes,  96; 
Fish.,  311.  And  see  Howe  r.  Mor-  Wells  r.  Gill,  6  Fish.,  89;  Mid- 
ton,  1  Fish.,  586.  As  to  the  consid-  dlings  Purifier  Co.  r.  Christian,  4 
erations  governing  the  court  in  de-  Dill..  448. 

termining     whether    to    grant     an  '■'•->  Dorsey  Co.  v.   Marsh,  6  Fish., 

injunction  or  to  require  defendant  387.     And   see  Yuengling  v.   John- 

to  keep  an  account,  see  Plimpton  son,  1  Hughes,  607. 

I'.  Spiller,  4  Ch.  D.,  286.  •-•«  Morris        Shelbourne,  4  Fish., 

•"•*  See  Chipman  v.  Wentworth,  5  377;  S.  C,  8  Blatch.,  266. 
58 


914  INJUNCTIONS.  [chap.  XVI. 

is  manifest  and  the  right  to  an  injunction  clear,  it  will  not 
be  withheld  because  of  defendant  offering  security  for  dam- 
ages and  an  account  of  sales.^'^ 

§969.  Plaintiff's  prior  possession  and  use  considered;  pax- 
tial  infringement;  denial  by  answer.  On  an  application  to 
enjoin  the  infringement  of  a  patent,  the  court  may  take  into 
consideration  complainant's  possession  of  the  right  and  his 
use  of  the  invention  before  the  application  for  the  grant 
of  letters  patent.^^  But  the  use  must  be  a  public  use,  under  an 
avowed  claim  of  right,  since,  if  this  be  not  so,  there  is  no 
exclusive  possession  as  against  the  public,  and  no  claim  in 
which  it  can  acquiesce.^*^  It  is  not,  however,  necessary  that 
all  the  grants  of  right  in  the  patent  should  have  been  in- 
fringed, but  the  injunction  will  issue  for  the  violation  of 
a  portion  of  them.'**^  And  a  mere  denial  by  answer  of  the 
equity  of  the  bill  does  not  prevent  the  court  from  looking 
into  the  law  and  the  facts  of  the  case,  and  where  the  right 
depends  upon  the  interpretation  to  be  given  to  the  letters 
patent  the  court  will  look  into  the  instrument  and  con- 
strue it,  notwithstanding  the  answer  denies  the  right  to  the 
relief.^i 

§  970.  Dissolution.  An  injunction  in  patent  cases  is  not 
designed  to  delay  or  impair  the  right  of  trial  by  jury,  but 
rather  to  make  the  prima  facie  title  prevail  until  such  trial 
can  be  had.'*^  Hence,  where  an  injunction  has  been  granted 
on  proof  of  former  recT)veries  and  long  possession,  it  will 
not  necessarily  be  dissolved  on  an  answer  denying  the  valid- 
ity of  the  patent,  but  will  be  continued  to  allow  an  issue  at 
law  upon   that   question.^^      -^q^.   ^y{\\   h^q   injunction  be   dis- 

3T  Tracy  v.  Torrey,  2  Blatch.,  275.         +i  Clum  r.  Brewer,  2  Curt.  C.  C, 

38  Sargent  v.  Seagrave,  2  Curt.  C.     506. 

C,  553.  42  Woodworth       r.       Rogers,      3 

39  Toppan     V.     National     Co.,   4     Woodb.  &  M.,  135. 

Blatch.,  509.  j.i  Orr  ;;.  Merrill,  1  Woodb.  &  M., 

10  Potter   V.    Holland,    4    Blatch.,     376. 
238;    S.  C,  1  Fish.,  382. 


CHAP.  XVI.]  INFEINGEMENT  OF  PATENTS.  915 

solved  because  of  doubts  as  to  the  validity  of  the  patent, 
growing  out  of  errors  on  the  part  of  the  officers  issuing  it, 
when  steps  have  been  taken  in  Congress  to  correct  such 
errors  by  appropriate  legislation."*^ 

§  971.  Rig^hts  of  license©.  A  licensee  of  a  patent,  if  his 
rights  be  infringed,  is  entitled  to  the  aid  of  an  injunction 
to  restrain  such  infringement  to  the  same  extent  as  the 
original  patentee."*^  Thus,  a  licensee  who  has  the  exclu- 
sive right  to  vend  the  patented  article  within  a  given  ter- 
ritory may  enjoin  others  from  purchasing  or  procuring  the 
devise  from  the  licensor  and  selling  it  within  the  forbidden 
territory  in  violation  of  the  contract  between  the  licensor  and 
the  plaintiff.^^  And  where  a  patentee  has  by  contract  given 
a  license  to  plaintiff  to  make  and  use  the  patented  inven- 
tion, the  suing  out  of  an  injunction  restraining  plaintiff 
from  such  manufacture  is  a  breach  of  the  contract  and 
sufficient  ground  for  maintaining  an  action  thereon.*^  But 
where  plaintiff'  held  a  license  to  manufacture  under  de- 
fendant's patent,  defendants  having  the  option  to  terminate 
plaintiff's  license  if  the  sums  due  for  fees  were  not  paid,  it 
was  held  that  a  court  of  equity  had  no  jurisdiction  to  en- 
tertain a  bill  to  obtain  a  construction  of  the  license  and  to 
restrain  defendants  from  giving  notice  of  their  option  to 
terminate  the  license  and  from  attempting  to  collect  the 
fees,  but  that  the  remedy  should  be  sought  at  law.^** 

§  972.  The  same.  Where  an  injunction  is  in  full  force 
against  the  use  of  a  patented  machine,  the  court  will  not 
a,llow  its  use  by  parties  claiming  under  the  patentee  of  the 


44Woodworth  v.  Hall,  1  Woodb.  Phonograph  Co.  v.  Jones,  123  Fed., 

&  M.,  389.  197. 

45  Brammer   v.   Jones,    2    Bond,  *"  Sailings    v.  Goodyear    Dental 

100.  Vulcanite  Co.,  36  Mich.,  313. 

4«  New  England  Phonograph  Co.  ^«  Florence  S.   M.  Co.  v.    Singer 

V.  Edison,  110  Fed.,  26;  New  York  M.  Co.,  8  Blatch.,  113. 


916  INJUNCTIONS.  [chap.  XVI. 

invention  enjoined.^"*  But,  although  a  proA'isioual  injunction 
will  be  granted  against  the  licensee  of  a  patent,  if  applied 
for  during  his  violation  of  the  restrictions  subject  to  which 
he  received  his  license,  yet  if  it  appears  that  such  violation 
was  made  under  a  misapprehension  of  his  rights,  and  has 
been  discontinued,  the  injunction  will  be  withheld.-''*^  And 
where  defendant  claims  the  right  to  manufacture  under  an 
assignment  of  a  license  from  plaintiffs,  an  interlocutory  in- 
junction will  be  refused  when  it  is  not  shown  that  defend- 
ants are  using  the  invention  in  any  manner  not  warranted  by 
the  license.-'^  Where,  by  the  terms  of  the  license,  a  for- 
feiture is  incurred  by  non-payment,  the  remedy  may  be  either 
at  law  to  enforce  the  payment,  or  in  equity  to  restrain  the 
use  of  the  patent.'"'-  But  a  license  to  use  the  patent,  granted 
by  one  tenant  in  common,  can  not  be  enjoined  by  another 
tenant  in  common,  their  right  to  sell  or  license  being  equai.^^ 
And  where  it  appears  by  the  answer  that  defendant  was  act- 
ing under  a  license  from  complainant,  the  injunction  will  be 
dissolved/'^ 

§973.  Actual  infringement  not  necessary;  apprehensions 
of  future  infring-ement ;  experiments.  It  is  not  necessary  to 
the  issuing  of  the  w^rit  that  the  wrong  should  actually  have 
been  committed,  but  reasonable  grounds  for  belief  that  an 
infringement  may  occur  in  the  future  will  warrant  the  in- 
junction,  when   the   title   has   been   established   at   law.^^"'     So 

^'•>  Wooaworth     /■.     Edwards,     3  will  never  interfere  where  there  is 

Woodb.  &  M.,  120.  adequate  remedy  at  law. 

^-0  Wilson  r.  Sherman,  1  Blatch.,  •"■;!  Clum  r.  Brewer.  2  Curt.  C.  C, 

536.  506. 

•'-1  Belding    r.   Turner,   8   Blatch.,  "-^  Goodyear  r.  Bourn,  3  Blatch.. 

321.  266. 

•"'^  Woodworth  r.  Weed,  1  Blatch.,  •"••"'  Poppenhusen    r.    New  York,  4 

165.     It  may  well  be  doubted,  how  Blatch.,  184.     This  was  a  bill  for 

ever,    whether    this     rule    can     oe  an  injunction  whore  a  verdict  had 

maintained    consistently    with    the  been  had  against  the  defendants  in 

established    principle     thai     equity  the  same  court  in  an  action  at  law 


CHAP.  XVI.] 


IXFRINGEMEMT  OF  PATENTS. 


917 


although  no  actual  infringement  has  occurred,  yet  if  there  is 
a  deliberate  intention  expressed  and  about  to  be  carried  into 
execution  to  infringe  under  a  claim  of  right  to  use  the 
patented  invention,  plaintiff  is  entitled  to  relief  by  injunc- 
tion.''" And  where  defendant  has  in  his  possession  a  num- 
ber of  the  infringing  devices  and  has  already  nifringed  plain- 
tiff's patent,  or  where  it  is  clear  that  he  intends  to  manu- 
facture and  sell  the  offending  device,  it  is  no  defense  that 
no  sales  have  as  yet  been  made  or  that  the  defendant  has  no 
further  intention  of  violating  the  plaintiff's  rights,  since,  ii 


upon  the  same  patents.  The  bill 
alleged  violation  of  complainant's 
right  after  the  verdict,  and  that 
defendants  would  continue  such 
violation  in  future,  unless  re- 
strained by  injunction.  Ingersoll, 
J.,  delivering  the  opinion  of  the 
court,  says:  "The  writ  of  injunc- 
tion is  a  remedial  writ  in  the  na- 
ture of  a  prohibition.  The  object 
of  the  present  motion  for  an  in- 
junction is  to  prevent  the  commis- 
sion of  injuries  in  the  future,  not 
to  redress  injuries  that  are  past. 
The  writ  prayed  for  is  to  act  as  a 
remedy  against  a  threatened  wrong 
by  preventing  the  commission  of 
such  wrong;  and  it  is  not  neces- 
sary, before  a  writ  to  prevent  a 
wrong  can  issue,  that  the  wrong 
should  actually  have  been  com- 
mitted. If  it  were,  the  remedy  by 
injunction  would  be  a  very  inade- 
quate one.  If  the  rights  of  a  party 
under  a  patent  have  been  fully  and 
clearly  established,  and  an  in- 
fringement of  such  rights  is 
threatened,  or  if,  when  they  have 
been  infringed,  the  party  has  good 
reason  to  believe  they  will  con- 
tinue  to  be    infringed,   an   injunc- 


tion will  issue.  It  issues  for  the 
reason  that  there  is  good  ground 
to  believe  that  in  future  they  will 
be  infringed.  Where  a  trial  at 
law  has  been  had,  resulting  in  a 
verdict  in  favor  of  the  patentee, 
and  the  right  to  the  improvement 
patented  has  been  fully  establish- 
ed, to  the  satisfaction  of  the  court, 
and  the  infringement  of  right 
made  clear,  such  a  trial  resulting 
in  such  a  verdict  is  sufficient,  with- 
out any  other  proof,  to  authorize 
the  court  to  grant  an  injunction 
to  prevent  any  future  violation  of 
right.  Such  a  trial,  with  such  a 
result,  affords  sufficient  proof,  that, 
in  future,  there  will  be  an  in- 
fringement, unless  such  infringe- 
ment is  restrained  by  injunction. 
It  is,  under  such  circumstances,  al- 
most a  matter  of  course  that  the 
injunction  should  be  allowed. 
(Neilson  v.  Harford,  Webster's 
Patent  Cases,  373).  Such  a  trial 
at  law,  resulting  in  such  a  verdict, 
to  the  entire  satisfaction  of  the 
court,  has  taken  place  between  the 
parties  to  this  suit."  See  also 
Frearson  /-.  Loe,  9  Ch.  D.,  48. 
se  Frearson  r.  Loe,  9  Ch.  D.,  48. 


918  iNjUNCTioxs.  [chap.  xvr. 

such  is  the  case,  no  harm  will  result  from  the  injunction.-'^''' 
And  the  fact  that  defendant  has  previously  infringed  plain- 
tiff's patent  and  has  some  of  the  infringing  devices  upon 
hand  and  has  advertised  them  in  his  catalogue  is  sufficient 
ground  for  an  injunction,  even  though  defendant  is  at 
present  making  no  sales  and  has  promised  not  to  do  so.^"* 
And  where  defendant  has  already  filled  an  order  for  the  in- 
fringing device  in  the  ordinary  course  of  business  and  there 
is  therefore  reason  to  believe  he  will  fill  similar  orders  in 
the  future  if  brought  to  him,  an  injunction  will  issue  to 
restrain  future  infringement,  although  there  is  no  threat  or 
suggestion  upon  the  part  of  the  defendant  of  future  in- 
fringement."^  And  while  the  making  of  the  patented  article 
by  defendant  in  the  course  of  bona  fide  experiments,  with  a 
view  of  improving  upon  the  invention,  is  not  of  itself  an 
infringement,  yet  equity  will  enjoin  a  defendant  from  manu- 
facturing a  quantity  of  the  patented  goods  under  the  plea  of 
experimenting,  even  though  the  quantity  be  small.^*^  But 
where  the  owners  of  rival  machines  have  submitted  them  to 
a  competitive  examination  before  judges  appointed  by  an 
institute  for  the  promotion  of  manufactures  and  the  arts, 
and  such  judges  have  determined  that  one  of  the  machines 
is  entitled  to  a  medal  of  superiority,  an  injunction  will  not 
lie  in  behalf  of  one  of  the  competitors  to  prevent  the  delivery 
of  such  medal.^^ 

§  974.  Public  convenience ;  injury  to  third  persons.  When 
the  patented  machine,  the  use  of  which  it  is  sought  to  enjoin, 
is  being  used  by  defendants  for  the  convenience  of  the  pub- 
lic, as  in  the  case  of  a  stone-crusher  used  in  repairing  the  roads 

57  Sessions    v.   Gould,    49    Fed.,  "o  Dunlop  Pneumatic  Tyre  Co.  v. 

855;  New  York  B.  &  P.  Co.  v.  Gut-  Neal,    (1899)   1  Ch.,  807. 

ta   Percha   Mfg.   Co.,  56   Fed.,   264.  go  Frearson  v.  Loe,  9  Ch.  D.,  48. 

And  see,  post,  §  976.  gi  New  E.  V.  Co.  r.  American  In- 

■'•^  Henzel  y.  California  Electrical  stitute,   24   Fed.,   561;    S.   C,  upon 

Works,   2  C.  C.  A.,  495,   51    Fed.,  final  hearing,  28  Fed.,  722. 
754. 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  919 

in  a  large  cemetery  adjacent  to  a  city,  the  use  of  the  machine 
being  necessary  for  the  public  convenience  in  burying  the 
dead,  an  injunction  may  be  withheld  in  limiiie  upon  terms 
of  defendant  paying  into  court  the  amount  of  plaintiff's 
royalty  upon  the  machine,  to  abide  the  result  of  the  suit.^^ 
But,  while  the  question  of  public  convenience  may  thus  be 
considered  in  passing  upon  an  application  for  an  interlocu- 
tory injunction  to  restrain  the  infringement  of  a  patent,  it 
is  held  that  the  fact  that  the  granting  of  the  injunction  will 
indirectly  work  an  injury  to  third  persons  affords  no  ground 
for  denying  the  relief  in  a  case  otherwise  proper  for  an  in- 
junction.^^ Where,  however,  plaintiffs  have  no  patented 
machine  in  operation  and  are  neither  manufacturing  nor 
using  it,  and  the  eft'ect  of  an  injunction  would  be  to  close 
up  defendant's  business  and  it  would  be  productive  of  great 
expense  and  injury  to  third  parties,  it  is  proper  for  the  court 
to  take  such  facts  into  consideration  in  refusing  an  applica- 
tion for  an  interlocutory  injunction.*'^ 

§  975.  Validity ;  novelty ;  infringement.  To  warrant  relief 
by  injunction  against  the  infringement  of  letters  patent,  the 
court  must  be  satisfied  of  the  validity  of  plaintiff's  patent, 
of  the  novelty  of  his  invention  and  of  the  fact  of  infringe- 
ment.*^^  If,  therefore,  grave  doubt  exists  as  to  the  validity 
of  the  patent,  an  interlocutory  injunction  will  be  denied.^^ 
So  if  the  court,  upon  the  evidence  before  it,  entertains  strong 
doubts  as  to  the  novelty  of  plaintiff' 's  invention,  it  will  refuse 
to   interfere   by   injunction    in   limiiie.^'^     And   where   defend- 

62  Blake  r.  Greenwood  Cemetery,  Hodges,   1   Holmes,     37;      Sargent 

14  Blatch.,  342.  Manufacturing  Co.  v.  Woodruff,  5 

C3  Rumford    Works   v.   Vice,     14  Biss.,  444. 

Blatch.,  179.  ^s  Fales  v.  Wentworth,  1  Holmes, 

64  Hockholzer  v.  Eager,  2  Sawy.,  96;  S.  C,  5  Fish.,  302;  Huber  v. 
361.  And  see  Dorsey  Co.  v.  Marsh,  Myers  Sanitary  Depot,  33  Fed., 
C  Fish.,  387.  48;  Wollensak  v.  Sargent,  33  Fed., 

65  Fales  v.  Wentworth.  1  Holmes,  840. 

96;    S.   C,   5   Fish.,   302;    Jones   i'.         e?  Jones  r.  Hodges,  1  Holmes,  37. 


920  INJUNCTIONS.  [chap.  XVI. 

ant's  article  which  is  alleged  to  be  an  infringement  of  plain- 
tiff's patent  is  being  manufactured  under  letters  patent,  the 
court,  upon  an  application  for  an  interlocutory  injunction, 
is  at  liberty  to  indulge  the  presumption  that  it  is  not  an 
infringement,  and  may  deny  the  injunction,  leaving  the  ques- 
tion of  infringement  to  be  determined  upon  the  final  hear- 
ing.^^  So  when  the  fact  of  mfringement  is  fully  denied  by 
the  answer  under  oath,  and  by  affidavits  in  support  of  it, 
the  question  being  left  in  great  doubt  upon  the  papers  pre- 
sented upon  the  motion  for  an  injunction,  it  is  proper  to 
Avithhold  the  relief  upon  an  interlocutory  application,  leaving 
the  matter  to  be  determined  upon  the  hearing.*^^ 

§  976.  Infringement  after  verdict ;  promise  by  defendant 
nat  to  continue  infringement.  When  a  verdict  has  already 
been  recovered  against  defendants  in  an  action  at  law  in 
the  same  court  and  upon  the  same  patents,  and  a  bill  is 
then  filed  to  procure  an  injunction,  the  bill  alleging  a  viola- 
tion of  plaintiff's  rights  after  verdict,  it  will  not  suffice  for 
defendants  to  answer  that  what  they  have  done  since  the 
finding  of  the  verdict  was  not  in  violation  of  plaintiff's 
right;  but  they  should  state  explicitly  that  they  do  not  in- 
tend to  commit  any  infringement  in  the  future.'^^  Nor  will 
the  fact  that  since  the  commencement  of  suit  defendants 
have  ceased  to  infringe,  and  do  not  threaten  further  infringe- 
ment, prevent  the  issuing  of  a  preliminary  injunction,  if  a 
necessity  for  the  writ  existed  at  the  time  of  filing  the  bill, 
plaintiffs  alleging  that  they  apprehend  a  continuance  of  the 
infringement.  In  such  cases  the  patentee  will  not  be  com- 
pelled to  rest  his  equities  upon  the  mere  assertion  of  de- 
fendants that  the  infringement  shall  not  be  repeated,  and 
the   court   will   impose   the   necessary   restraint   to   prevent   a 

'■'**  Sargent   Manufacturing  Co.  /•.  Backus  H.  Co.,  97  Wis.,  160,  72  N. 

Woodruff,  5  Bi.ss.,  444.  W.,  230. 

<■•"  Sargent   Manufacturing  Co.  '■  '"  Poppenhusen   r.  New  York,    4 

Woodruff,  5   Diss.,  444;    Walker  (.  Blatrh..  184. 


CHAP.  XVI.]  IXIKIXGEMEXT  OF  PATENTS.  921 

repetition  of  the  injury.'*  And  where  defendant  has  been 
guilty  of  infringing  phiintiff's  patent  in  the  past,  his  assur- 
ance that  he  has  no  further  intention  of  so  doing  and  his 
promise  to  desist  will  not  be  sufficient  to  overcome  the  pre- 
sumption of  future  infringement  arising  from  his  past  acts 
and  will  accordingly  be  no  defense  to  an  application  for  an 
injunction."^  But  where,  in  addition  to  a  disclaimer  by  the 
defendant  of  an  intention  of  again  infringing  plaintifit' *s 
patent,  there  is  an  absence  of  reasonable  ground  for  believing 
that  he  will  again  do  the  act  complained  of,  the  injunction 
will  be  denied.'^^ 

§  977.  Subsequent  patent  to  defendant ;  doubt  as  to  nov- 
elty. Complainant's  patent  being  fully  established  at  law, 
and  the  infringement  being  clearly  proven,  the  injunction 
will  not  be  refused  because  of  defendant's  reliance  upon  a 
subsequent  patent  to  himself,  which  contains  on  its  face  satis- 
factory evidence  that  its  process  involves  an  infringement 
of  the  prior  patent."^  But  to  warrant  the  injunction,  it  must 
appear  that  defendant  has  either  used  the  patented  machine 
himself,  or  has  employed  others  to  use  it  for  him,  or  has 
profited  by  its  use.'^^  And  where  the  novelty  of  the  inven- 
tion is  denied,  and  the  question  is  involved  in  considerable 
doubt,  the  injunction  will  be  withheld  until  a  trial  at  law.'^* 

§  978.  Proof  as  to  inventor ;  dissolution.  Upon  the  appli- 
cation for  the  writ  it  must  appear,  either  in  the  sworn  bill, 

Ti  Potter  V.  Crowell,  1  Abb.  U.  S.  Giitta    Percha   Mfg.    Co.,   56     Fed., 

R.,    89;    S.    C,   3    Fish.,   112;    Jen-  264. 

kins    V.   Greenwald,    2     Fish.,     37;  -'Proctor   v.   Bajiey,   42  Ch.   D., 

Rumford  Works  r.  Vice,  14  Blatch.,  390. 

179;  White  v.  Heath,  10  Fed.,  291.  '^  Goodyear  v.  Evans,  6  Blatch., 

72  Geary   v.   Norton,    1     DeG.    &  121. 

Sm.,   9;    Celluloid  Mfg.   Co.   v.  Ar-  -•  Woodworth  v.  Hall,  1  Woodb. 

lington    Mfg.    Co.,    34     Fed.,     324;  &  M.,  249. 

White  r.  Walbridge,  46  Fed.,  526;  -''Booth    r.    Garelly,     1     Blatch.. 

Sawyer  Spindle  Co.  v.  Turner,  55  247. 
Fed.,  979;  New  York  B.  &  P.  Co.  r. 


922  INJUNCTIONS.  [OIIAP.  XVI. 

or  by  affidavit,  that  complainant  is  the  inventor  of  the  patent 
to  be  protected,  and  it  does  not  suffice  that  he  swore  to  this 
when  he  obtained  his  patentJ'^  And  on  a  motion  for  a  dis- 
solution of  the  injunction,  upon  affidavits,  sufficient  proof 
must  be  adduced  to  overcome  the  equity  of  the  bill  and  the 
evidence  supporting  it.^^  And  where  a  special  injunction  is 
granted  upon  bill  filed,  a  motion  to  dissolve  will  not  be  heard 
upon  the  same  evidence,  or  on  new  evidence  improperly  neg- 
lected on  the  former  hearing,  but  new  and  material  testimony 
will   be   required.'^ 

§  979.  Parties.  Equity  will  not,  on  the  application  of  the 
legal  owner,  enjoin  the  equitable  owner  of  a  patent.^"  But 
where  one  person  has  the  legal  and  another  the  equitable 
right  to  the  patent,  both  should  be  joined  in  an  action  for 
infringement.^'*^  And  where  the  infringement  is  the  act  of 
several  persons  jointly,  they  should  all  be  made  defendants, 
but  if  it  is  their  separate  act  separate  bills  should  be  filed 
against  them.*'^  The  directors  of  a  corporate  company  who, 
as  the  agents  of  the  company,  have  committed  an  infringe- 
ment, should  be  made  parties.^^  And  the  assignor  of  a 
patent,  who  still  retains  an  interest  in  the  patent,  although 
none  in  the  territory  where  the  infringement  occurred,  is  a 
proper  party  to  a  bill  for  an  injunction.^^  So  the  assignee 
of  part  of  a  patent,  within  a  particular  territory,  may 
properly  enjoin  the  infringement  in  that  territory.*^''  And 
where  one  of  three  parties  works  a  patented  machine,  which 

7T  Sullivan   r.   Redfield,   1   Paine,  33;  Goodyear  r.  New  Jersey  R.  R., 

441.  1  Fish..  626. 

78  Sparkman       v.       Higgins,       1  »-  Dilly  r.  Doig,  2  Ves.  Jr.,  486. 

Blatch.,  205.  »•''  Betts  v.  DeVitre,  34  L.  J.  Ch  , 

7!' Woodworth       r.       Rogers,     3  289;  Goodyear  r.  Phelps,  3  Blatch., 

Woodb.    &   M.,    135.  91. 

«f»  Clum  r.  Brewer,  2  Curtis,  506.  ***  Woodworth  r.  Wilson,  4  How., 

«i  Stimpson  v.  Rogers,  4  Blatch..  712. 

333;   Goodyear  r.  Allyn,  6  Blatch.,  '^■'' Ogle  r.  Edge,  4   Wash.  C.  C, 

584. 


CHAP.  XVI.]  INFRINGEMENT  OF  PATENTS.  923 

is  owned  by  two  others,  the  relief  will  be  granted  against 
all.**"  Nor  will  the  court  refuse  to  enjoin  because  a  number 
of  parties,  all  of  whom  are  interested  in  the  patent,  have  con- 
tributed to  a  common  fund  for  tHe  protection  of  their  com- 
mon rights  by  prosecuting  infringements  of  those  rights.^''' 
But  the  owner  of  a  patent  can  not  maintain  a  bill  to  enjoin 
officers  of  the  government  of  the  United  States  from  using 
devises  alleged  to  infringe  plaintiff's  patent,  where  such  de- 
vises are  the  property  of  the  United  States  as  owner  or 
lessee  and  are  being  used  by  such  officers  in  the  service  of 
the  government.  In  such  case  the  United  States,  having  a 
proprietary  interest  in  the  alleged  infringing  device,  is  a 
necessary  party  to  the  proceeding  and  since  it  can  not  be 
made  a  party  thereto,  the  bill  must  fail  and  the  injunction 
be  denied.^^ 

§  980.  Questions  of  jurisdiction.  For  the  purpose  of  re- 
straining the  infrmgement  of  a  patent  the  court  need  only 
have  jurisdiction  of  the  person.^'^  But  where  defendant  re- 
sides in  another  jurisdiction,  in  which  the  infringement  oc- 
curred, the  court  will  not  interfere.^*^  And  it  has  been  held 
that  a  defendant  who  is  the  owner  of  a  patent  in  certain 
territory  can  not  be  enjoined  from  selling  the  patented 
machine  in  complainant's  territory,  on  the  ground  that  the 
law  extends  protection  only  to  the  thing  patented,  and  not 
to  its  product.^'  But  it  is  no  defense  to  an  application  for 
an  injunction  that  the  defendants  have  ceased  manufacturing 
the  infringing  article  in  the  district  if  they  are  still  asso- 
ciated in  the  business  of  manufacturing  and  selling  it  at  some 
place   outside   of  the   district.^^ 

86  Woodworth  v.  Edwards,  3  sa  Wilson  v.  Sherman,  1  Blatch., 
Woodb.  &  M.,  120.  536. 

87  Potter  V.  Fuller,  2  Fish.,  251.  «»  Goodyear  v.  Bourn,  3  Blatch.. 

88  Belknap  r.    Schild,   161  U.  S..  266. 

10,  16  Sup.  Ct.  Rep.,  443;  Interna-  "i  Boyd  r.  Brown,  3  McLean,  295. 
tional  Postal  S.  Co.  r.  Bruce,  194  92  Braddock  Glass  Co.  v.  Macbeth, 
U.   S.,   601.   24   Sup.   Ct.  Rep.,   820.     12  C.  C.  A.,  70.  64  Fed.,  118. 


924  IXJUKCTIONS.  [chap.  XVI. 

§981.  Expiration  of  patent;  assignee  of  defendant  pen- 
dente lite.  An  injunction  may  be  granted,  although  the 
patent  is  about  to  expire,  to  restrain  the  sale  of  machines 
manufactured  in  violation*thereof  while  it  is  yet  in  force."^ 
And  where  the  validity  of  the  patent  and  the  infringement 
by  the  defendant  are  clear,  a  preliminary  injunction  should 
be  allowed,  although  the  patent  will  soon  expire  and  the 
defendant  is  financially  responsible  and  willing  to  give  bond 
for  damages.''^  And  under  such  circumstances,  an  injunction 
may  be  alloAved  upon  final  hearing.*^"^  But  where,  notwith- 
standing the  validity  of  the  patent  and  infringement  by  the 
defendant,  the  remaining  life  of  the  patent  is  of  so  short 
a  duration  that  the  effect  of  the  relief  would  be  merely 
nominal  and  of  no  practical  value  to  the  plaintiff,  an  inter- 
locutory injunction  may  be  denied  upon  defendant's  giving 
bond  for  the  payment  of  damages.^ 

§  981  a.  The  same ;  effect  on  appeal ;  when  injunction  al- 
lowed though  patent  has  expired.  In  case  the  patent  has 
already  expired,  either  before  the  filing  of  the  bill  or  there- 
after but  before  the  application  for  the  injunction,  that  fact 
is  conclusive  against  the  right  to  the  writ,  either  upon  in- 
terlocutor}' application  or  upon  final  hearing.-  And  in  such 
case,  if  a  preliminary  injunction  has  already  been  granted, 
it  should  be  dissolved  even  as  to  the  sale  of  articles  manu- 
factured during  the  life  of  the  patent."^     And  where  an  ap- 

03  Crossley  v.  Beverley,    1  Russ.         2  Clark    v.    Wooster,    119    U.    S., 

&  M.,  166,  note.  322,   7   Sup.  Ct.  Rep.,  217;    Ameri- 

34  Electric  S.  B.  Co.  v.  Buffalo  E.  can  Cable  Ry.  Co.  i\  Chicago  City 

C.  Co.,  117  Fed.,  314.  Ry.    Co.,    41    Fed.,    522;    American 

"•■■'  American     Bell     Tel.     Co.     1:.  Cable  Ry.  Co.  r.  Citizens  Ry.  Co., 

Brown,     58     Fed.,     409;   American  44    Fed.,    484;    Covert    r.    Travers 

Bell   Tel.   Co.     r.    Western    Tel.  &  Bros.  Co.,  96  Fed.,   568;      Vaughn 

Const.  Co..  58  Fed-.  410.  r.  Central  Pacific  R.  Co.,  4  Sawy.. 

1  National   Cash-Register   Co.    v.  280. 
Navy  Cash-Register   Co.,  99    Fed.,         •«  Westinghouse   v.  Carpenter,   43 

565.  Fed.,  894. 


CHAP.   XVI.]  IXFKIXGEMEXT  OF  PATENTS.  925 

peal  has  been  taken  from  a  preliminary  injunction,  the  ex- 
piration of  the  patent  pending  sueh  appeal  terminates  the 
operation  of  the  injunction  and  the  appeal  should  therefore 
be  dismissed.^  Although  an  article  has  become  common  prop- 
erty by  reason  of  the  expiration  of  the  patent,  yet  where 
plaintiff  has  been  manufacturing  the  article  from  patterns 
which  he  has  prepared  after  great  labor  and  has  never  pub- 
lished to  the  world,  one  who  has  surreptitiously  copied  such 
patterns  and  is  making  the  article  from  them  will  be  en- 
joined.'* But  the  part  manufacture  of  a  patented  article  dur- 
ing the  life  of  the  patent,  which  does  not  amount  to  an  in- 
fringement, for  the  purpose  of  completing  the  article  after 
its  expiration  will  not  be  enjoined  since  what  the  defend- 
ant is  doing  does  not  and  never  will  amount  to  an  in- 
fringement.^ But  the  provisions  of  the  writ  may  be  ex- 
tended to  an  assignee  of  the  defendant,  who  takes  an  as- 
signment of  defendant's  right  pendente  lite,  and  with  full 
knowledge  of  all   the   proceedings.'^ 

§  981  h.  Effect  of  expiration  on  right  to  accounting".  Upon 
the  question  of  what  becomes  of  the  main  action  wdien  the 
patent  has  expired  after  the  filing  of  the  bill,  it  is,  of 
course,  clear  that  if  the  injunction  is  the  only  relief  sought, 
the  bill  must  be  dismissed  upon  the  failure  of  the  right  to 
the  injunction.  Where,  however,  as  is  usually  the  case,  the 
bill  seeks  an  accounting  as  Avell  as  injunctive  relief,  the 
authorities  are  not  uniform.  Upon  the  one  hand,  it  has  been 
held  that  so  long  as  the  patent  is  in  force  at  the  time  of  the 
filing  of  the  bill  and  a  sufficient  length  of  time  intervenes  be- 
fore its  expiration  to  enable  the  plaintiff,  under  the  rules  of 
the  court,  to  apply  for  an  interlocutory  injunction,  the   bill 

i  Gamewell  F.  T.  Co.  r.  Municipal  '•  Tabor  r.  Hoffman.  118  N.  Y.,  30, 

Signal  Co.,  9  C.  C.  A.,  450,  61  Fed.,  23  N.  E.,  12,  16  Am.  St.  Rep.,  740. 

208;  Lockwood  v.  Wickes,  21  C.  C.  '' White    r.    Walbridge.    46    Fed., 

A.,  257,  75  Fed..  118;  National  Fold-  526. 

ing  B.  &  P.   Co.   /•.   Robertson,  44  '  Parkhurst       v.       Kinsman,     2 

C.  C.  A.,  29,  104  Fed..  552.  Blatch.,  78. 


926  INJUNCTIONS.  [chap.   XVI, 

should  be  retained  for  purposes  of  an  accounting  notwith- 
standing the  expiration  of  the  patent  and  the  consequent 
failure  of  the  right  to  the  injunction.  In  such  case,  since  the 
action  is  one  which,  in  its  inception,  entitled  the  plaintiff  to 
relief  in  equity,  the  mere  fact  that  the  patent  has  subse- 
quently expired  and  has  thus  defeated  the  right  to  a  part  of 
the  relief  sought,  will  not  operate  to  deprive  the  court  of  a 
jurisdiction  which  has  once  attached,  and  the  court,  having 
thus  acquired  jurisdiction  by  the  filing  of  the  bill,  will 
retain  it  for  all  purposes  and  may  accordingly  grant  relief 
by  way  of  an  accounting.^  The  rule  as  thus  announced,  be- 
ing supported  by  the  authority  of  the  Supreme  Court  of  the 
United  States,  must  be  regarded  as  firmly  and  definitely  es- 
tablishing the  proper  practice.  It  has  nevertheless  been  held, 
upon  a  bill  for  an  injunction  and  accounting,  that  where  it 
appeared  upon  the  lace  of  the  bill  that  the  patent  had  ex- 
pired after  the  commencement  of  the  action,  a  demurrer 
should  be  sustained  and  the  bill  should  accordingly  be  dis- 
missed, there  being  no  other  special  circumstances  which 
would   entitle   plaintiff   to   equitable   relief.^ 

§982.  Grounds  of  dissolution;  account;  appeal.  Where  an 
injunction  is  granted  against  the  infringement  of  a  patent, 
and  at  the  same  time  complainant  is  ordered  to  bring  an 
action  at  law  to  test  his  rights,  delay  in  proceeding  at  law  will 
constitute   sufficient   ground   for   a   dissolution    of   the   injunc- 

8  Clark    V.    Wooster,   119    U.     S.,  cago   City  Ry.   Co.,   41   Fed.,    522; 

322,  7  Sup.  Ct.  Rep.,  217;  Beedle  v.  American  Cable  Ry.  Co.  v.  Citizens 

Bennett,  122  U.  S.,  71,  7  Sup.  Ct.  Ry.  Co.,  44  Fed.,  484.  And  see  Rus- 

Rep.,  1090;   Busch  v.  Jones,  184  U.  sell  v.  Kern,  16  C.  C.  A.,  154,  69 

S.,  598,  22  Sup.  Ct.  Rep.,  511;  Ross  Fed.,  94.    See  also  Root  v.  Railway 

r.  City  of  Ft.  Wayne,  11  C.  C.  A.,  Co.,  105  U.  S.,  189,  where  no  injunc- 

288,  63  Fed.,  466.     And  see  Keyes  tion  was  sought  but  only  relief  by 

r.   Eureka  Mining  Co.,  158  U.   S.,  way   of   accounting   and   damages. 

152,  15  Sup.  Ct.  Rep.,  772;   "West-  See  also   Covert   v.   Travers   Bros, 

inghouse  r.  Carpenter,  43  Fed.,  894.  Co.,  96  Fed.,  568. 

0  American  Cable  Ry.  Co.  v.  Chi- 


CHAP.   XVI.]  INFRINGEMENT  OF  PATENTS.  927 

tion,  but  defendants  may  still  be  required  to  keep  an  ac- 
count after  the  dissolution.^^  ^^^j  ^j^^  court  may,  on  suf- 
ficient cause  shown,  permit  the  injunction  to  be  dissolved 
upon  condition  of  defendants  giving  security  to  account  to 
complainants  if  their  right  shall  be  established.^'  But  a  de- 
cree for  an  injunction  in  a  patent  cause,  with  a  reference  to 
a  master  to  take  an  account  of  profits,  is  not  considered 
a   final   decree   from  which   an   appeal   will   lie.^^ 

§983.  Penalty  for  not  marking  patented  articles;  injunc- 
tion upon  the  hearing-.  The  penalty  imposed  by  act  of  Con- 
gress for  not  marking  patented  articles  does  not  affect  the 
right  to  an  injunction  to  restrain  an  infringement.^^  Nor  is 
complainant  barred  from  asking  an  injunction  upon  the  hear- 
ing because  of  his  neglect  to  apply  for  the  relief  by  an  in- 
terlocutory motion,  although  such  neglect  will  impose  upon 
him  the  obligation  of  making  out  a  clear  and  unexception- 
able title  at  the  hearing.^-* 

§  984.  Process  not  patented  may  be  protected.  A  process 
of  manufacture  may,  under  certain  circumstances,  be  pro- 
tected by  injunction,  although  not  the  subject  of  a  patent. 
Thus,  where  defendant,  through  breach  of  contract  and  in 
violation  of  confidence,  has  become  possessed  of  a  secret 
process  of  manufacture,  he  will  be  enjoined  from  making 
any  use  of  the  secret.  Although  complainant  in  such  a  case 
may  not  be  entitled  to  protection  in  equity  as  against  the 
public  generally,  his  process  not  being  patented,  he  is  en- 
titled to  protection  against  the  defendant  who  has  obtained 
possession  of  his  secret  in  violation  of  the  contract  of  the 
person  by  whom  it  was  communicated  to  defendant.^^ 

10  Stevens  v.  Keating,  2  Ph.,  333.         is  Goodyear  v.   Allyn,   6   Blatch., 

11  Brooks  V.  Bicknell,  3  McLean,     33;  S.  C,  3  Fish.,  374. 

250.  14  Bacon  v.  Spottiswoode,  1  Beav., 

12  Barnard  v.  Gibson,  7  How.,  382;  Buchanan  v.  Rowland,  5 
650;     Humiston    v.    Stainthorp,    2     Blatch.,  151. 

Wal.,  106.  And  see,  post,  Subdi-  i&  Morrison  r.  Moat,  9  Hare,  241; 
vision  III,  chapter  on  Appeals. 


928 


INJUNCTIOxXS. 


[chap.    XVI. 


§  985,  When  jurisdiction  exercised  over  foreigners.  The 
jurisdictiou  of  equity  for  the  protection  of  patents  is  exer- 
cised over  foreigners  within  the  limits  of  the  country  grant- 
ing the  patent,  as  well  as  over  its  own  subjects  and  citizens. 
And  an  injunction  will  be  allowed  to  restrain  the  citizens 
of  one  nation  from  using  machinery  patented  to  the  citizens 
of  another,  on  board  their  ships  within  the  harbors  of  the 
nation  granting  the  patent.^*' 


Westervelt  v.  National   Paper  Co., 
154  Ind.,  673,  57  N.  E.,  552. 

i«  Caldwell  v.  Vanvlissengen,  9 
Hare,  415.  The  principles  applica- 
ble to  injunctions  against  the  in- 
fringement of  patents  by  foreigners 
within  the  jurisdiction  of  the  gov- 
ernment granting  the  patent  are 
well  set  forth  by  the  Vice  Chancel- 
lor in  this  case,  as  follows:  "I  take 
the  rule  to  be  universal  that  for- 
eigners are  in  all  cases  subject  to 
the  laws  of  the  country  in  which 
they  may  happen  to  be;  and  if  in 
any  case,  when  they  are  out  of 
their  own  country,  their  rights  are 
regulated  and  governed  by  their 
own  laws,  I  take  it  to  be,  not  by 
force  of  those  laws  themselves,  but 
by  the  law  of  the  county  in  which 
they  may  be  adopting  those  laws 
as  part  of  their  own  law  for 
the  purpose  of  determining  such 
rights.  *  *  *  Foreigners  com- 
ing in  this  country  are,  as  I  ap- 
prehend, subject  to  actions  for 
injuries  done  by  them  whilst  here 
to  the  subjects  of  the  crown.  Why, 
then,  are  they  not  to  be  subject  to 
actions  for  the  injury  done  by 
their  infringing  upon  the  sole  and 
exclusive  right  which  I  have  shown 
to  be  granted  in  conformity  with 
the    laws  and  constitution  of  this 


country?  And  if  they  are  subject 
to  such  actions,  why  is  not  the 
power  of  this  court,  which  is 
founded  upon  the  insufficiency  of 
the  legal  remedy,  to  be  applied 
against  them  as  well  as  against  the 
subjects  of  the  crown.  It  was  said 
that  the  prohibitory  words  of  the 
patent  were  addressed  only  to  the 
subjects  of  the  crown;  but  these 
prohibitory  words  are  in  aid  of  the 
grant  and  not  in  derogation  of  it; 
and  they  were  probably  introduced 
at  a  time  when  the  prohibition  ot 
the  crown  could  be  enforced  per- 
sonally against  parties  who  ven- 
tured to  disobey  it.  The  language 
of  this  part  of  the  patent,  there- 
fore, does  not  appear  to  me  to 
alter  the  case.  *  *  *  j^  the  ar- 
gument on  the  part  of  the  defend- 
ants much  was  said  on  the  hard- 
ship of  this  court's  interfering 
against  them,  and  upon  the  incon- 
venience which  would  result  from 
it;  and  some  reference  was  made 
to  the  policy  of  this  country;  but 
it  must  be  remembered  that  British 
ships  certainly  can  not  use  this  in- 
vention without  the  license  of  the 
patentees,  and  the  burthens  inci- 
dent to  such  a  license;  and  for- 
eigners can  not,  I  think,  justly 
complain  that  their  ships  are   not 


CJIAP.   XVI. J 


infringp:ment  of  patents. 


929 


§  986.  Violation ;  infringement  not  determined  in  con- 
tempt proceeding';  judgment  imposing-  fine,  being  criminal, 
is  reviewable  by  writ  of  error.  One  wlio  lia.s  been  enjoined 
from  the  infringement  of  a  patent  violates  the  mandate  of 
the  court  by  using  a  machine  which  in  substance  and  prin- 
ciple contains  important  portions  of  the  patent,  although  in 
other  respects  it  may  contain  new  and  improved  features. 
So  if  he  uses  another  patent,  similar  in  principle,  the  author 
of  which  has  also  been  enjoined  by  the  owner  of  the  first 
patent,  he  is  guilty  of  a  contempt  of  court.' '''  And  a  de- 
fendant who  has  been  enjoined  from  infringing  by  the  manu- 
facture and  sale  of  the  article,  is  equally  guilty  of  a  vio- 
lation of  the  writ,  whether  he  sells  in  his  own  right  or  as 
the  agent  of  another.'*^  So  working  for  wages  in  a  shop  or 
factory,  where  articles  are  manufactured  infringmg  on  com- 
plainant's patent,  is  a  violation  of  the  injunction,  if  done 
by  one  on  whom  the  writ  was  served,  and  will  be  punished 


permitted  to  enjoy,  without  license 
and  without  payment,  advantages 
which  the  ships  of  this  country  can 
not  enjoy  otherwise  than  under 
license  and  upon  payment.  It 
must  be  remembered  that  foreign- 
ers may  take  out  patents  in  this 
country,  and  thus  secure  to  them- 
selves the  exclusive  use  of  their 
inventions  within  Her  Majesty's 
dominions;  and  that,  if  they  neg- 
lect to  do  so,  they,  to  this  exent, 
withhold  their  invention  from  the 
subjects  of  this  country.  It  is  to 
be  observed,  also,  that  the  enforce- 
ment of  the  exclusive  right  under 
a  patent  does  not  take  away  from 
foreigners  any  privilege  which  they 
ever  enjoyed  in  this  country;  for, 
if  the  invention  was  used  by  them 
in  this  country  before  the  granting 
of  the  patent,  the  patent,  I  apprc- 

59 


hend,  would  be  invalid.  One 
principal  ground  of  inconvenience 
suggested  was,  that  if  foreign  ships 
were  restrained  from  using  this  in- 
vention in  these  dominions,  Eng- 
lish ships  might  equally  be  re- 
strained from  using  it  in  foreign 
dominions;  but  I  think  this  argu- 
ment resolves  itself  into  a  question 
of  national  policy,  and  it  is  for  the 
legislature,  and  not  for  the  courts, 
to  deal  with  that  question;  my 
duty  is  to  administer  the  law  and 
not  to  make  it.  Upon  the  grounds 
which  I  have  referred  to,  I  think 
that  the  facts  stated  in  the  affida- 
vits and  answer  do  not  furnish 
sufficient  grounds  for  refusing 
these  injunctions." 

17  Wood  worth  r.  Rogers,  3 
Woodb.  &  M..  135. 

IS  Potter  r.  Muller,  2  Fish.,  631. 


930  INJUNCTIONS.  [chap.   XYl. 

by  attachment.!'^  ^q^^j  jj^  q^^^q  qJ  ^  wilful  violation  of  an 
injunction  against  the  infringement  of  a  patent,  it  is  proper 
for  the  court,  on  motion  for  an  attachment  against  defend- 
ant, to  impose  upon  him  the  payment  of  such  counsel  fees 
and  disbursements  as  were  necessary  to  establish  the  viola- 
tion of  the  injunction.-^  And  it  has  been  held  that  where, 
after  the  granting  of  an  injunction  against  infringement,  de- 
fendant has  made  additions  to  the  infringing  device,  the  ques- 
tion whether  the  device  as  thus  modified  constitutes  an  in- 
fringement can  not  be  determined  in  a  motion  for  attachment 
for  contempt  but  must  be  raised  by  supplemental  bill  in  the 
original  cause  or  by  new  suit.^^  The  imposition  of  a  fine 
for  the  violation  of  an  injunction  where  the  contempt  pro- 
ceedings are  heard  upon  motion  entirely  disconnected  with 
the  proceeding  in  which  the  injunction  was  granted,  is  a 
judgment  in  a  criminal  cause  and,  as  such,  is  reviewable  by 
writ  of   error   and   not  by   appeal.-^ 

§  987.  Account  not  incidental  to  injunction.  The  jurisdic- 
tion of  the  United  States  courts  in  this  class  of  cases  being 
derived  wholly  from  statute,  the  English  rule  that  the  ac- 
count is  strictly  incident  to  the  injunction,  and  that  where 
an  injunction  is  refused  an  account  will  be  denied,  is  not 
applicable  in  this  country.-^  And  if  the  patent  has  expired 
between  the  time  of  filing  the  bill  and  the  hearing,  the  court 
may  direct  an  account,  although  no  injunction  will  be  al- 
lowed  against  the  future  use  of  the  article.-^ 

la  Goodyear  v.  Mullee,  5  Blatch.,  366,  67  Fed.,  163.     And  see,  post, 

429;  S.  C,  3  Fish.,  209.  §  1466. 

20  Doubleday  v.  Sherman,  4  Fish.,  -'^  Sickles  v.  Gloucester  Manufac- 

253.  taring  Co.,  1  Fish.,  222. 

-1  Enterprise  Mfg.  Co.  v.  Sargent,  -*  Imlay  v.  Norwich  &  W.  R.  Co., 

48   Fed.,   453.       And    see    Allis  i.  4   Blatch.,   227.     And   see,  ante,   § 

Stowell,  15   Fed.,  242.  981  b. 

'■;••:  Gould  c.  Sessions.  14  C  C  A., 


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